Ninth District Opinions for Lorain County Released on June 28, 2013

The Court of Appeals for the Ninth Appellate District released two decisions from Lorain County appeals on June 28, 2013.  My summaries of these decisions appear below. 

State v. Carlton, 2013-Ohio-2788 was a criminal appeal in which the trial court was affirmed. Mr. Carlton cited five assignments of error on appeal.

Mr. Carlton argued that the prosecutor's remarks during opening statement were a misstatement of the law and that even though his lawyer didn't object, the trial court committed plain error in not correcting the assistant prosecutor trying the case. 

He also argued that his conviction was against the manifest weight of the evidence and that his motion under Crim. R. 28 should have been granted because the state failed to produce sufficient evidence in its case in chief. 

He argued that the trial court erred in allowing in other acts evidence and that the trial court erred in its instructions by not requiring unanimity in the jury's verdicts. That assignment of error relied on an argument that the State had charged him with "multiple acts" while the State argued that it had charged him with "alternative means" of committing the crimes. The Court agreed with the State that the correct analysis was an "alternative means" analysis and not a "multiple acts" analysis. Judge Hensal's decision contains case citations from the Ohio Supreme Court on the "alternative means" versus "multiple acts" analysis and what each analysis requires. 

Altercare, Inc. v. Clark, 2013-Ohio-2785 is a case in which both Altercare, inc. and its former employee, Clark, filed appeals from a decision of the Lorain County Common Pleas Court regarding the issue of spoliation of evidence. 

Altercare had sued Clark for various causes of action related to her employment as its CEO and Clark had counterclaimed. Before litigation Clark's attorney had sent a letter to Altercare regarding a computer that Clark had used during her employment. Clark's attorney wanted the computer preserved or a mirror image made of its hard drive. During discovery it became apparent that Altercare had not preserved the computer's hard drive or made a mirror image of the hard drive. 

The trial court sanctioned Altercare for this spoliation of evidence by dismissing all of its counts against Clark. It did not, however, grant Clark's request for judgment on her counterclaim. Altercare appealed and Clark cross-appealed. Clark, however, failed to submit a merit brief in support of her cross-appeal, so it was dismissed. The Court then affirmed the trial court's decisions regarding the dismissal of the Altercare complaint. 

Judge Whitmore's opinion refers to the provision of Civ. R. 37 which concerns the preservation of electronically stored information, (ESI), and the factors that a trial court should consider when deciding to sanction a party for non-compliance.