Ninth District Opinions Released on August 14, 2013

State v. Tomlinson, 2013-Ohio-3520 was a decision in which Mr. Tomlinson filed an application with the Court to reopen his appeal. The Court granted the request, finding that his appellate counsel had been deficient. The Court then went on to reverse his conviction because the trial court had erred in the manner in which it imposed court costs. Judge Carr concurred in the opinion noting that she would not have vacated the Court's prior decision but would have remanded back to the trial court for a correct assessment of costs. 

State v. Swiger, 2013-Ohio-3519 was a reversal of a decision from the Summit County Common Pleas Court. Ms. Swiger argued that the trial court had erred in not giving the jury an insanity defense instruction on her charges of aggravated vehicular assault and driving while under the influence. The trial court did give an insanity instruction on the charges of leaving the scene of an accident, and child endangering. The jury found Swiger guilty of all four counts. 

Swiger appealed the trial court's denial. The State responded by pointing out that in the case of State v. Ungerer, 87 Ohio App.3d 110 the Court held that a defendant was not entitled to a not guilty by reason of insanity. The State also argued that that charges of aggravated vehicular assault and driving while under the influence do not have a culpable mental state and therefore Swiger was not entitled to an insanity instruction. 

The Court rejected both arguments. In regards to the first argument the Court pointed out that its prior decision had involved a municipal court case which was brought under the Ohio Traffic Rules. Those Rules do not provide for an plea of not guilty by reason of insanity. All of Swiger's charges, however, were brought pursuant to an indictment and therefore the Traffic Rules did not apply.  

On the second argument the Court acknowledged that the offenses do not carry a culpable mental state. The Court reasoned, however, that R.C.2901.21(D)(2) requires that criminal liability be imposed when the defendant acts voluntarily and cannot be imposed when the defendant acts involuntarily such as when the person is asleep or unconscious. The Court then reasoned that a person who is insane is not engaging in voluntary acts. Consequently the Court held that defendants charged with strict liability offenses may raise the defense of not guilty by reason of insanity. 

State v. Sturgell, 2013-Ohio-3518 was an appeal from a decision of the Summit County Common Pleas Court imposing consecutive sentences. Unfortunately for Mr. Sturgell while he filed an appeal from the decision of the trial court on his motion to "correct" his sentence, he did not file an appeal from the judgment entries that actually imposed the consecutive sentences. As a result those sentencing entries were not part of the record on his appeal from the decision regarding his motion to correct his sentence. Since they were not part of the record, the appellate court did not have jurisdiction to review assignments of error based on those entries. Consequently all of Sturgell's assignments of error were overruled. 

Stewart v. Depth Constr., 2013-Ohio-3517 was a decision appealing the granting of a motion for summary judgment from the Akron Municipal Court. The Court of Appeals reversed and remanded. The basis of the reversal was that the defendant did not meet the burden under Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996), of pointing to evidentiary materials that supports the motion for summary judgment. Since the defendant did not meet that burden, the decision was reversed. The decision goes on with a very interesting discussion on suing entities with trade or fictitious names. 

Quantum Servicing Corp. v. Haugabrook, 2013-Ohio-3516  was a decision appealing the denial of a motion to reconsider the granting of a default judgment issued by the Summit County Common Pleas Court. The Court of Appeals reversed and remanded with instructions to dismiss the case. The Court ruled that the plaintiff never established that it had standing to bring the lawsuit. The decision was based on the Ohio Supreme Court decision of  Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, and subsequent cases. 

State v. Lovett, 2013-Ohio-3515 was an appeal from a decision of the Summit County Common Pleas Court denying a motion to have the trial court declare that Lovett didn't have to pay storage fees on a vehicle seized during a traffic stop. The Court of Appeals found that Lovett's appeal was not well taken since he hadn't filed an appeal from the entry that sentenced him and ordered him to pay the storage and towing fees. Since he hadn't appealed from that entry, the appellate court had no jurisdiction to hear his appeal. 

State v. Klein, 2013-Ohio-3514  was an appeal from a decision of the Summit County Common Pleas Court convicting him of  DUI, aggravated vehicular assault, and driving while under suspension. Mr. Klein appealed citing two grounds of error. The first was that the jury verdicts were against the manifest weight of the evidence and the other was that the trial court in allowing a police officer to testify as an expert without submitting a report as provided in Crim. R. 16 (K). The appellate court rejected both arguments and affirmed Klein's convictions. 

In re D.K., 2013-Ohio-3513  was an appeal from a decision of the Summit County Juvenile Court terminating the parental rights of the child D.K. The assignments of error by the mother and father were that the evidence relied on by the lower court was not clear and convincing. The opinion is very fact specific. The appellate court affirmed the Juvenile Court's decision. 

State v. Hurd, 2013-Ohio-3512 was a decision reversing Ms. Hurd's conviction for domestic violence in the Stow Municipal Court. When the case was called Hurd appeared without an attorney. When asked why she hadn't applied for representation by the public defender she said that she had been sick. The trial court noted that the case had been pending for a month and that people would be "inconvenienced" if the case didn't proceed to trial. The trial proceeded and Hurd was convicted. She was sentenced to 10 days in jail, but the jail time was suspended and she was put on probation for two years. 

In reversing the conviction the Court of Appeals noted that Crim. R. 44 (B) prohibits incarceration for a "petty" offense, i.e., one that carries six months of incarceration or less as a penalty, unless the defendant knowingly waives counsel. In this case that did not happen and so the case was reversed and remanded. 

State v. Dickson, 2013-Ohio-3511 affirmed Mr. Dickson's conviction for four misdemeanors including obstructing official business, coercion, and receiving stolen property. Dickson appealed arguing that his attorney was ineffective, the evidence was insufficient to convict him, and that the convictions were against the manifest weight of the evidence. All of the assignments of error were overruled. 

State v. Daniel, 2013-Ohio-3510 was an appeal from a decision of the Summit County Common Pleas Court denying a petition for post-conviction relief. Mr. Daniel was convicted in 1999 of three counts of rape and three counts of gross sexual imposition. The indictment that contained those charges was a supplemental indictment and was not signed by the grand jury foreperson or deputy foreperson. Daniel argued that because the indictment was not signed it was defective and that the charges should have been dismissed. 

The Court of Appeals affirmed on two grounds. The first was that the petition for post-conviction relief was untimely in that 12 years had passed and Daniel did not show why the petition could not have been filed timely. The second was that the issue of the unsigned indictment could have been raised on direct appeal. The decision of the lower court was affirmed. 

State v. Campanalie, 2013-Ohio-3509 affirmed Ms. Capanalie's conviction by the Stow Municipal Court for one count of theft, a first degree misdemeanor. Capanallie argued that the evidence was insufficient for conviction and that the trial court should have granted a directed verdict of acquittal under Crim. R. 29. The appellate court rejected that argument. 

Buckeye Corrugated, Inc. v. Cincinnati Ins. Co., 2013-Ohio-3508 was an appeal from a decision of the Summit County Common Pleas Court granting a motion by the Cincinnati Insurance Company to compel discovery. Cincinnati was defending Buckeye Corrugated on a reservation of rights. BCI claimed that the information sought by Cincinnati was privileged under attorney-client privilege and that BCI had not waived its privilege with respect to that information. The Court of Appeals agreed with BCI and reversed the trial court's decision. The opinion contains a very good discussion of attorney-client privilege and the waiver of such privilege. 

Brown v. Allala, 2013-Ohio-3507 reversed a decision by the Summit County Domestic Relations Court regarding child support owed by Mr. Allala for the minor child of the parties. The Court of Appeals reversed because the record did not show that the trial court either adopted a child support worksheet or completed one on its own. The Court of Appeals noted that in prior rulings it had said that R.C. 3119.02 mandates that the record include a completed child support worksheet and it is reversible error if the record does not include such an order. 

State v. Ball, 2013-Ohio-3506 affirmed Mr. Ball's conviction by the Summit County Common Pleas Court for seven counts alleging sex offenses including rape and gross sexual imposition. Ball appealed arguing that the verdict was against the manifest weight of the evidence, that his trial attorney was incompetent, and that there was prosecutorial misconduct. All of the assignments of error were overruled. 

State v. Linde, 2013-Ohio-3503 affirmed Mr. Linde's conviction in the Summit County Common Pleas Court for aggravated robbery and aggravated burglary. Linde appealed arguing that the trial court incorrectly sentenced him for allied offenses of similar import. The Court of Appeals noted that an issue regarding allied offenses of similar import are fact specific and that Linde's brief contained no facts regarding the two offenses. Therefore that argument was rejected. 

Linde also argued that the offenses of aggravated robbery and aggravated burglary are allied offenses. The Court of Appeals in rejecting that argument noted that several appellate courts in Ohio have found that the two offenses are not allied offenses of similar import. The following quote is from the opinion: "Since Johnson, numerous appellate courts have determined that aggravated robbery and aggravated burglary are not allied offenses of similar import because an aggravated burglary is complete upon an offender’s forced entrance and an aggravated robbery requires additional conduct."

Linde's third assignment of error was that the trial court erred in imposing sentences greater than the minimum sentences. That assignment was also rejected.