Court of Appeals, Eighth Appellate District Page: 1 of 9 November 27, 2013 98708 DOMESTIC RELATIONS F CIVIL C.P.-JUV, DOM, PROBATE VICKI M. O'MALLEY v PATRICK J. O'MALLEY Eileen T. Gallagher, J., Melody J. Stewart, A.J., and Kathleen Ann Keough, J., concur. KEY WORDS: Structural error, due process, R.C. 3109.0(C), right to privacy, visitation, guardian ad litem, best interest of children, child support worksheet, cumulative error. Modification of parental rights affirmed. There was no structural error or due process violation in the court s decision to designate Father the residential parent where mother had notice and was present, with counsel, for all proceedings. Order requiring father to use security cameras in his home did not violate children s right to privacy where cameras intended to secure the safety of the children and Father in the home and court order did not require Father to publish the videotapes to anyone. Final judgment temporarily prohibiting Mother from visiting children did not violate her constitutionally protected interest in the care and custody of her children where mother engaged in conduct that would harm the children and their relationship with Father. Trial court s decision not to appoint separate counsel for the children was not an abuse of discretion where appointment of counsel was not mandatory and guardian ad litem sufficiently protected children s interests. Trial court did not abuse its discretion when it relied on guardian ad litem s report and testimony. Court did not violate Mother s right to due process even though it took the court over 120 days to rule on her motion for modification where mother s actions substantially contributed to the delay. 99334 JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: C.O., ET AL. 99335 JUVENILE COURT DIVISION F CIVIL C.P.-JUV, DOM, PROBATE IN RE: P.O., ET AL. Kathleen Ann Keough, J., Melody J. Stewart, A.J., and Eileen T. Gallagher, J., concur. KEY WORDS: procedural due process; attorney for children;
Court of Appeals, Eighth Appellate District Page: 2 of 9 (Case 99335 continued) guardian ad litem; Sup.R. 48; in camera interview; neglect; dependency Trial court did not err in dismissing children s complaint for neglect and dependency where children did not satisfy their burden of proof. Trial court did not err in its failure to conduct an in camera interview with the children because the children did not satisfy the threshold burden at adjudication; thus, no disposition or best interest analysis was required. Children were afforded procedural due process because they were represented by counsel and the guardian ad litem s report sufficiently complied with Sup.R. 48. 99370 CLEVELAND MUNI. C CRIMINAL MUNI. & CITY CITY OF CLEVELAND v HASSAN CRUTCHER 99371 CLEVELAND MUNI. C CRIMINAL MUNI. & CITY CITY OF CLEVELAND v HASSAN CRUTCHER Eileen A. Gallagher, J., and Eillen T. Gallagher, J., concur; Frank D. Celebrezze, Jr., P.J. concurs in judgment only. KEY WORDS: Judgment affirmed; ineffective assistance of counsel; insufficient evidence; manifest weight. The judgment of the trial court is affirmed; trial counsel did not render ineffective assistance in choosing not to cross-examine the City s witnesses; Crutcher s convictions for public intoxication and resisting arrest were not supported by insufficient evidence nor were they against the manifest weight of the evidence. 99388 COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v MAURICIO CERON Mary J. Boyle, P.J.; Patricia Ann Blackmon, J., concurs; Larry A. Jones, Sr., J., dissents with separate opinion. KEY WORDS: Evid.R. 404(B); other-acts evidence; Evid.R. 803(4); exception to the hearsay rule; prosecutorial misconduct; cumulative error. The trial court properly admitted the SANE s nurse s testimony regarding the 5-year-old victim s statements under Evid.R. 803(4). The trial court erred when it permitted the state to present other-acts evidence of the defendant as it was not relevant and was not presented for a legitimate purpose under Evid.R. 404(B); but it
Court of Appeals, Eighth Appellate District Page: 3 of 9 (Case 99388 continued) was harmless error as there was substantial other evidence of the defendant s guilt presented. The evidence presented was sufficient and the defendant s conviction was not against the manifest weight of the evidence. There was no cumulative error. 99402 COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v TIMOTHY TYLER Tim McCormack, J., and Melody J. Stewart, A.J., concur; Mary J. Boyle, J., dissents (with separate dissenting opinion attached). KEY WORDS: Sufficient evidence; manifest weight; drug possession; R.C. 2925.11(A); drug trafficking; R.C. 2925.03(A)(2); possession of criminal tools; R.C. 2923.24(A); constructive possession; dominion or control. There was sufficient evidence to convict appellant of drug possession, drug trafficking, and possession of criminal tools where appellant had the ability to exercise dominion or control over the drugs and criminal tools sufficient to show constructive possession. The conviction is not against the manifest weight of the evidence. 99484 COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v RONNIE SAGERE Kenneth A. Rocco, P.J., Eileen A. Gallagher, J., and Patricia Ann Blackmon, J., concur. KEY WORDS: Motion to withdraw guilty plea, lack of legitimate basis, trial counsel The trial court did not abuse its discretion when it denied appellant s oral presentence motion to withdraw his guilty pleas, because the totality of the circumstances warranted a conclusion that he lacked a reasonable basis for his motion despite his complaints about his attorney; trial counsel s efforts secured for appellant a highly advantageous plea deal.
Court of Appeals, Eighth Appellate District Page: 4 of 9 99508 COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v PIERRE CHATMON Melody J. Stewart, A.J., Mary J. Boyle, J., and Tim McCormack, J., concur. KEY WORDS: Reckless homicide; complicity; evidence; jury instructions; ineffective assistance of counsel; plain error; jail-time credit. Jury verdict for complicity in murder supported by evidence that defendant actively aided codefendant in shooting by carrying his own firearm and admitting that he accompanied the codefendant to the scene of the crime with the intent to engage the victim and his family in a fight. Video surveillance footage confirmed the state s evidence by showing the defendant checking his gun and putting it in the waistband of his trousers shortly before the shooting and then running from the scene with the gun in his hand. 99516 CLEVELAND MUNI. C CRIMINAL MUNI. & CITY CITY OF CLEVELAND v ELIJAH CRUMP Reversed, vacated, and remanded. Kenneth A. Rocco, J., Sean C. Gallagher, P.J., and Mary Eileen Kilbane, J., concur. KEY WORDS: Cleveland Codified Ordinance 615.06; Obstructing Official Business, Sufficiency of the Evidence; Affirmative Act; Crim.R. 29 Because there was no evidence that defendant-appellant committed an affirmative act, the evidence was insufficient to sustain the conviction for obstructing official business. Accordingly, the trial court erred in denying defendant s motion to dismiss under Crim.R. 29. 99552 COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v MARCUS YOUNG Kenneth A. Rocco, P.J., Eileen A. Gallagher, J., and Patricia Ann Blackmon, J., concur. KEY WORDS: Escape; R.C. 2921.34(A)(3); supervised release detention; post-release control; whereabouts unknown; sufficiency of the evidence; manifest weight of the evidence
Court of Appeals, Eighth Appellate District Page: 5 of 9 (Case 99552 continued) Defendant-appellant s conviction for escape under R.C. 2921.34(A)(3) was supported by sufficient evidence and was not against the manifest weight of the evidence, where the evidence at trial established that the defendant purposely concealed his whereabouts from his parole officer. 99589 COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v DAVID JEFFERSON Dismissed. Mary J. Boyle, P.J., Eileen A. Gallagher, J., and Mary Eileen Kilbane, J., concur. KEY WORDS: Motion to discharge; R.C. 2905.03; R.C. 2945.67(A); jurisdiction. This court dismissed the state s appeal because under R.C. 2945.67(A), the state could not appeal the trial court s granting of the defendant s motion to discharge as a matter of right. The state could have moved for leave to appeal, but it did not. Therefore, this court lacked jurisdiction to address the state s motion. 99609 COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v PHILLIP R. CORNICK, ET AL. Dismissed. Melody J. Stewart, A.J., Kathleen Ann Keough, J., and Eileen T. Gallagher, J., concur. KEY WORDS: Dismissal; lower court case number; dismissal without prejudice. Interlocutory appeal dismissed when lower court case dismissed without prejudice. 99613 COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v JIMMY LEE KINDER Reversed and remanded. Kenneth A. Rocco, P.J., Eileen A. Gallagher, J., and Patricia Ann Blackmon, J., concur. KEY WORDS: R.C. 2929.14(C)(4); R.C. 2953.08(G)(2); consecutive sentences
Court of Appeals, Eighth Appellate District Page: 6 of 9 (Case 99613 continued) Because the trial court did not make all of the R.C. 2929.14(C)(4) findings prior to imposing consecutive sentences for appellant s three convictions, appellant s sentences are reversed and the matter remanded for resentencing pursuant to R.C. 2953.08(G)(2). 99662 COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO JEANINE M. FISHER, EXECUTRIX, ETC. v BEAZER EAST, INC., ET AL. Affirmed Mary Eileen Kilbane, J., Sean C. Gallagher, P.J., and Kenneth A. Rocco, J., concur KEY WORDS: Motion for Directed Verdict ; Motion for Judgment Notwithstanding the Verdict; R.C. 2307.96; R.C. 2307.23 Trial court properly denied defense motion for directed verdict where plaintiff met her burden under R.C. 2307.96 of proving exposure to the defendant s product and that the product was a substantial factor in causing the plaintiff s injury. Trial court properly denied defense motion for judgment notwitstanding the verdict where plaintiff met her burden under R.C. 2307.96 of proving exposure to the defendant s product and that the product was a substantial factor in causing the plaintiff s injury. Trial court properly included decedent s former employers in apportionment of liability under R.C. 2307.23 as this statute does not exclude employer negligence from the apportionment. 99708 COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO BONNIE GILBERT,ADMIN, ETC., ET AL. v CITY OF CLEVELAND, ET AL. Eileen T. Gallager, J., Frank D. Celebrezze, Jr., P.J., and Eileen A. Gallagher, J., concur. KEY WORDS: Government immunity; R.C. Chapter 2744; government employee immunity; wanton; reckless. Denial of summary judgment affirmed. Although police officer was acting within course and scope of employment at time of auto accident, there were genuine issues of material fact as to whether he was acting in a wanton or reckless manner.
Court of Appeals, Eighth Appellate District Page: 7 of 9 99719 COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO MARVIN H. SCHIFF, ESQ. v BLAKE A. DICKSON, ESQ., ET AL. Frank D. Celebrezze, Jr., P.J., Eileen A. Gallagher, J., and Patricia A. Blackmon, J., concur. KEY WORDS: R.C. 2323.51; sanctions; inspection of counsel files; frivolous conduct; accord and satisfaction; R.C. 2317.02; Civ.R. 26(B). The trial court did not err in denying the R.C. 2323.51 motion for sanctions without a hearing where the claim was not brought to maliciously injure or harass and was supported by arguments in existing law. The court also did not err in denying a motion to access opposing trial counsel s case file where no specific allegations of necessity or good cause were advanced. 99739 COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v JOHN ELIAS Melody J. Stewart, A.J., Patricia Ann Blackmon, J., and Tim McCormack, J., concur. KEY WORDS: Community control; revocation; res judicata. Court did not err by denying motion seeking to overturn community control revocation because the defendant failed to perfect an appeal from the original order revoking community control, so that issue was res judicata. 99741 COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO B & G PROPERTIES LIMITED PARTNERSHIP v OFFICEMAX, INC. Frank D. Celebrezze, Jr., J.; Melody J. Stewart, A.J., concurs in judgment only; Sean C. Gallagher, J., concurs in judgment only in part and dissents in part (with separate opinion) KEY WORDS: Commercial lease; bankruptcy termination provision; ipso facto clause; waiver of duty to mitigate damages; assignment; assignor liability; liquidated damages. The trial court did not err in holding that a commercial lessee who assigned its interest in the lease was liable for the remainder of the lease term after the assignee in possession declared bankruptcy
Court of Appeals, Eighth Appellate District Page: 8 of 9 (Case 99741 continued) and the lease was terminated by its rejection by the bankruptcy estate. Under the lease, the assignor remained liable for the entire duration, and the landlord was not required to mitigate its damages. A 5 percent late payment provision in the lease was also an enforceable liquidated damages provision. 99771 COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v JOSHUA A. FONTAINE Mary J. Boyle, P.J., Kathleen Ann Keough, J., and Mary Eileen Kilbane, J., concur. KEY WORDS: Motion to suppress; traffic stop; canine sniff. The trial court properly granted defendant s motion to suppress because the police unreasonably detained defendant beyond the scope of the initial traffic stop; police had no reasonable, articulable suspicion of criminal activity beyond that which prompted the initial stop. 99778 COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v BRITTANY ENGLISH Affirmed in part, reversed in part, and remanded. Eileen T. Gallagher, J., Frank D. Celebrezze, Jr., P.J., and Eileen A. Gallager, J., concur. KEY WORDS: Guilty plea; Fletchinger test; lesser included offense; Crim.R. 11(C); forfeiture; CCW permit; court costs. Guilty plea to charge that was not a lesser included offense did not violate defendant s right to due process where trial court ensured defendant understood the nature of the charge, facts supported conviction of amended charge. Forfeiture of CCW permit did not violate due process where court informed defendant that it would be forfeited prior to accepting the guilty plea. Court did not revoke the CCW, it merely prohibited its return to defendant. Sheriff is authorized to revoke CCW permit. Judgment entry of conviction was not inconsistent with trial court s oral statement on the record. Trial court failed to notify defendant that it could order her to perform community service until court costs are satisfied.
Court of Appeals, Eighth Appellate District Page: 9 of 9 99789 COMMON PLEAS COURT A CRIMINAL C.P. STATE OF OHIO v RICHARD SEGINES Affirmed Mary Eileen Kilbane, J., Mary J. Boyle, P.J., and Kathleen Ann Keough, J., concur KEY WORDS: Allied Offenses; Res Judicata Defendant could have raised the allied offense issue on the direct appeal or in the reopening of his direct appeal, but did not so it is barred by res judicata; In any event, where the force used to effectuate an aggravated robbery is far in excess of that required to complete the robbery, or where the circumstances suggest that a separate intent to kill existed, the offenses of aggravated robbery and murder do not merge. 99922 COMMON PLEAS COURT E CIVIL C.P.-NOT JUV,DOM OR PRO WINTERS LAW FIRM, LLC v CARYN GROEDEL & ASSOC.CO.LPA,ETAL. Affirmed Mary Eileen Kilbane, J., Sean C. Gallagher, P.J., and Kenneth A. Rocco, J., concur KEY WORDS: Arbitration clause; motion to stay pending arbitration; discovery; de novo standard of review. Trial court s judgment affirmed. Plaintiff s tortious interference with business relationships claim cannot be maintained without reference to the co-counsel agreement, which contains an arbitration provision. Therefore, the tortious interference with business relationships claim is subject to arbitration. Defendant did not seek discovery on the enforceability of the arbitration agreement; rather, she sought discovery on the merits of the tort claim. Since defendant s arguments did not evidence a need for discovery, the trial court was not required to allow for it.