Summit County Appellate Decisions for November, 2013

The Court of Appeals for the Ninth Appellate District released 16 decisions for appeals from Summit County in November of 2013. Summaries of these decisions appear below. 

November 27, 2013 Decisions

State v. Robinson, 2013-Ohio-5237 was an appeal from the Summit County Common Pleas Court denying Mr. Robinson's motions to vacate his 2003 convicted for murder and other offenses. The majority of the court affirmed the trial court on two grounds. The first was that the entry that Robinson argued was defective was not a sentencing entry and therefore did have to comply with the requirements of Crim. R. 32. The second was that the remaining assignments of error should have been raised on direct appeal and therefore were subject to the doctrine of res judicata. Judge Carr concurred but reasoned that the trial court's conclusion that Robinson's motions were actually petitions for post-conviction relief and were untimely was correct. 

State v. Payne, 2013-Ohio-5230 was an appeal from a conviction of Mr. Payne for rape of a minor. Payne set forth two assignments of error.

One was that the trial court erred in allowing evidence of a conversation between the victim, who is now an adult, and himself to come into evidence. He argued that the evidence was obtained in violation of R.C. 2933.52 and that his statements amounted to an involuntary confession. The Court of Appeals found that while Payne had filed a motion in limine and a motion to suppress, he had not objected to certain testimony regarding the taped conversation and that he had therefore waived this assignment of error unless there was plain error. The appellate court then did a plain error analysis and found no such error. 

Payne also argued that the trial court should have sustained his Batson objection to the State's peremptory challenge of an African-American man. The Court of Appeals found that the State presented a racially neutral justification for the challenge and overruled that assignment also. 

State v. Deem, 2013-Ohio-5227 was an appeal from a conviction in the Summit County Common Pleas Court for aggravated possession of drugs. Mr. Deem set forth one assignment of error which was that the trial court erred in not granting his motion for a directed verdict of acquittal pursuant to Crim. R. 29. Such a motion is an attack on the sufficiency of the evidence offered by the State. In this case the Court of Appeals examined the evidence offered by the State and found that the trial court ruled correctly. The conviction was affirmed. 

State v. Parham, 2013-Ohio-5229 affirmed the conviction of Parham for drug possession. Parham argued that the trial court erred in not granting his suppression motion. He alleged that his statements to the officer should have been suppressed because he did not receive Miranda warnings. He also alleged that the arresting officer who conducted a pat-down search didn't have probable cause to pull out the packet of drugs that he felt when conducting the pat-down. The Court of Appeals held that Parham didn't show that he was subject to a custodial interrogation. It also held that he didn't establish that the arresting officer was lying when he said that he recognized the packet of drugs as contraband from his experience as a police officer. 


State v. Davis, 2013-Ohio-5226 affirmed the conviction of Davis for felony murder and aggravated robbery. At trial the jury found that Davis was not guilty of having weapons under a disability and the firearm specification attached to the indictment. 

Davis argued on appeal that the trial court erred in not granting his Crim. R. 29 motion for acquittal. The appellate court found that the trial court did properly deny the motion since the evidence was both sufficient to justify the case going to the jury and the conviction was not against the manifest weight of the evidence. 

Davis argued that since he was found not guilty of the firearm specification and having weapons under a disability, the convictions for felony murder and aggravated murder were inconsistent and should be reversed. The Court of Appeals pointed out that under Ohio case law a person can be found not guilty of a firearm specification and that such a verdict doesn't undermine the conviction on the underlying charge. 

Finally David argued that his attorney was ineffective for not requesting a severance of his trial from that of a co-defendant. This assignment of error was also overruled. 

State v. Boware, 2013-Ohio-5225 affirmed the dismissal by the Summit County Common Pleas Court of a petition for post-conviction relief on the basis that it was untimely. Boware filed the motion out of time. In the motion he did not set forth reasons why the trial court should have considered the motion. The trial court held that since he hadn't set forth reasons why the trial court should consider the post-conviction relief petition the trial court did not have jurisdiction to hear the petition. The Court of Appeals affirmed that position. 

November 20, 2013

Jacobson-Kirsch v. Kaforey, 2013-Ohio-5114  affirmed a decision from the Summit County Common Pleas Court dismissing a case on the basis that it was filed outside of the statute of limitations. The plaintiff brought the case for the tort of interference with parental interests. The plaintiff argued that an action brought under R.C. 2307.50 is not a civil action and therefore the statute of limitations set forth in R.C. 2305.04 through R.C. 2305.22. The Court of Appeals disagreed finding that such an action is a civil action and should be brought within the statute of limitations set forth in R.C. 2305.09 (D), which is four years. 

State v. Brown, 2013-Ohio-5112 affirmed in part and reversed in part a decision by the Summit County Common Pleas Court. The Court of Appeals overruled the assignment of error that the trial court's verdict was against the manifest weight of the evidence. It reversed in part based on the fact that the trial court should have conducted an analysis to see if the offenses were allied offenses of similar import. The case was remanded back to the trial court in order to allow that court to conduct such an analysis. 

November 13, 2013 

Univ. of Akron v. Jones, 2013-Ohio-4999 affirmed a judgment of the Summit County Common Pleas Court. Mr. Jones raised two assignments of error in the Court of Appeals. The first assignment was that the trial court erred in not dismissing the case for lack of standing. The second assignment of error was that the trial court erred in not holding a hearing to determine whether he had been served properly. Both assignments of error were overruled. 

In re M.T.B., 2013-Ohio-4998 affirmed a decision of the Summit County Common Pleas Court, Juvenile Division, returning her children to M.T.B.'s custody while placing under the protective supervision of the Summit County Children Services Board. The mother alleged four assignments of error. 

The first was that the trial court should have dismissed the complaint regarding one of the children because service wasn't perfected on the father. The Court of Appeals noted that even if she had standing to raise that issue, she should have raised in the trial court. Her failure to do so waived that error. 

The second assignment of error concerned the ability of a visiting judge assigned to the Summit County Juvenile Court by the Ohio Supreme Court to sign an order adopting the magistrate's decision. The Court of Appeals noted that even if the visiting judge didn't have the authority to adopt the magistrate's order, it wouldn't have affected the Summit County Juvenile Court Judge's authority to sign a final order of disposition. 

The third assignment of error alleged that the trial court should have made what is described as a "reasonable efforts" determination regarding actions of the CSB. The Court of Appeals noted that such a determination is not required if the trial court has not removed or is not removing the child from the parent's home. Since the trial court was not issuing such an order in this case, it was not required to make such a finding. 

The fourth and final assignment of error was that the finding of the trial court that two of the children were dependent was against the manifest weight of the evidence. That assignment was also overruled. 

State v. Gordon, 2013-Ohio-4997 affirmed a decision of the Summit County Common Pleas Court denying a motion to suppress. Gordon alleged that the arresting officer didn't have probable cause to make a warrantless arrest for the offense which the officer subjectively believed that Gordon was committing. The Court of Appeals noted that the officer's subjective belief as to what crime he or she is arresting a defendant for is not relevant. The issue is whether the officer could have made a warrantless arrest for any offense that he or she had probable cause to believe was committed. Applying that standard meant that the trial court was affirmed. 

State v. Bryant, 2013-Ohio-4996 affirmed the denial of a motion to vacate sentence by the Summit County Common Pleas Court. Bryant had argued that the trial court erred in considering his motion as a petition for post-conviction relief and then holding that the petition was untimely. Bryant argued that the trial court did not properly merge allied offenses of similar import for sentencing. The Court of Appeals held that if a trial judge does not merge allied offenses, the sentence is voidable but not void. Since the sentence wasn't void, the trial court was correct in holding that the motion to vacate was really a petition for post-conviction relief, and that it was untimely filed. 

November 6, 2013

State v. Williams, 2013-Ohio-4897 affirmed a decision by the Summit County Common Pleas Court that the petition for post-conviction relief filed by Williams was untimely. Although Williams had titled his motion as a motion to vacate sentence, the trial court found that the motion was really a petition for post-conviction relief. 

The reason was this was so is seen by this quote from the Court of Appeals opinion: "The Supreme Court of Ohio has held that, “[w]here a criminal defendant, subsequent to his or her direct appeal, files a motion seeking vacation or correction of his or her sentence on the basis that his or her constitutional rights have been violated, such a motion is a petition for post-conviction relief as defined in R.C. 2953.21.” State v. Reynolds, 79 Ohio St.3d 158 (1997), at syllabus." Once the motion was considered as such a petition, it then becomes subject to the time limits for such motions and it was untimely. 

State v. Stoddard, 2013-Ohio-4896 affirmed Stoddard's conviction by the Summit County Common Pleas Court. Stoddard argued that his guilty plea was not knowingly, intelligently, and voluntarily made and that the trial court abused its discretion by not considering mitigating factors when it sentenced him. Both assignments of error were rejected. 

State v. Russell, 2013-Ohio-4895 affirmed the denial of a motion to suppress by the Summit County Common Pleas Court. Russell argued that the affidavit submitted by the officer was not sufficient to establish that the drugs and/or contraband would be found at the premises to be searched. The Court of Appeals reviewed the affidavit and found that even if the one paragraph that was disputed by Russell were not considered, the affidavit still have enough information to establish probable cause. 

Prussak-Klein v. Durachinsky, 2013-Ohio-4894 affirmed a decision of the Summit County Domestic Relations Court regarding whether or not tutoring expenses for the child of the parties was a "medical expense" and whether the motion for back child support was barred by the doctrine of res judicata. The Court of Appeals found no error by the trial court and both assignments of error were overruled. 

Medina County Appellate Decisions for November, 2013

The Court of Appeals for the Ninth Appellate District issued three decisions for appeals from Medina County during the month of November. All three decisions were issued on November 12, 2013.Summaries of the decisions appear below. 

 Sunset Estate Properties, L.L.C. v. Lodi, 2013-Ohio-4973 reversed a decision from the Medina County Common Pleas Court that upheld a zoning ordinance in the Village of Lodi that declared a mobile home park lot vacant if it had not been rented for six months. Such a declaration meant that the Lodi Board of Public Affairs wouldn't extend utility service to such lots. The Court of Appeals found that the ordinance was facially unconstitutional. The Court of Appeals reversed the granting of a summary judgment to the Village of Lodi on the grounds that the section involved was unconstitutional. It remanded the case back to the trial court for further proceedings. 

State v. McDonald, 2013-Ohio-4972  affirmed a decision by the Medina County Common Pleas Court Mr. McDonald him of various sexual offenses including three counts of rape. McDonald alleged four assignments of error. They were that the trial court erred in allowing a witness to testify as an expert; that the verdict was against the manifest weight of the evidence; that the trial court erred in admitting hearsay testimony; and that the trial court erred when it denied a motion to sever the charges. 

State v. Garnett, 2013-Ohio-4971 affirmed a decision of the Medina County Common Pleas Court convicting Mr. Garnett of drug trafficking in an amount equal to or greater than bulk amount. The appeal was based on the argument that the State erred in only testing one of the alleged Oxycodone pills and that it should have tested more. The Court of Appeals affirmed the conviction and held that the State could test a random sample of the pills given that the pills were identical, carried the same markings, and were manufactured by a pharmaceutical company.  

Wayne County Appellate Decisions for November, 2013

The Court of Appeals for the Ninth Appellate District released one decision on an appeal from Wayne County. That decision was released on November 12, 2013. A summary of the decision appears below. 

State v. Fields, 2013-Ohio-4970 affirmed a decision from the Wayne County Municipal Court. Mr. Fields appealed his conviction for driving while under the influence of alcohol. Mr. Fields was originally arrested in March of 2007. When the first trial date appeared Mr. Fields orally waived on the record his right to a speedy trial. He failed to appear and a warrant was issued for his arrest. In June of 2011 he filed a motion to dismiss for lack of speedy trial. That motion was denied. He then filed motions for a pretrial and discovery. The case went to trial and August of 2012 and he was found guilty. 

The Court of Appeals affirmed the trial court's denial of the motion to dismiss under the following analysis: From the time he orally waived his right to a speedy trial until he filed the motion to dismiss was tolled because of the waiver. Then from the time the motion to dismiss was filed until the trial date was reasonable because of delays attributable to the motions that Mr. Fields had filed. 

Lorain County Appellate Decisions for November, 2013

The Court of Appeals released four decisions for cases on appeal from Lorain County courts. Summaries of those decisions are set forth below. 

Deutsche Bank v. Holloway, 2013-Ohio-5194 was released on November 25, 2013. The decisions reversed a decision from the Lorain County Common Pleas Court granting a motion for summary judgment to the bank. The trial court was reversed because the bank didn't show that it had standing to bring the foreclosure. The decision relied on the Ohio Supreme Court decision of   Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, ¶ 28 and the Ninth District's own decision in BAC Home Loan Servicing, LP. v. McFerren, 9th Dist. Summit No. 26384, 2013-Ohio-3228, ¶ 8, 13. The latter decision holds that a plaintiff in a foreclosure action must show that it holds both the note and the mortgage when it files the action. 

In re A.H., 2013-Ohio-5080 was released on November 19, 2013. The appeal was from a decision of the Lorain County Common Pleas Court, Juvenile Division,  revoking probation for A.H. for 90 days. The appellate court found the appeal to be moot since he had already served the 90 day revocation period. 

State v. Ditzler, 2013-Ohio-4969 was released on November 12, 2013. The appeal was from a decision of the Lorain County Common Pleas Court denying a motion to void Mr. Ditzler's sexually violent predator specification. Ditzler argued that based on a Ohio Supreme Court decision that had held that a defendant could not be found guilty of such a specification if the predicate offense was not prior to the specification date. The Court of Appeals found that since Ditzler had not appealed this issue back in 2000 when he was convicted, there was no appeal pending from him at the time the Ohio Supreme Court released its decision. Therefore he could not raise the issue on this appeal. 

A.S. v. P.F., 2013-Ohio-4857 was released on November 4, 2013. The decision affirmed the granting of a civil stalking protection order by Lorain County Court of Common Pleas. The decision is very fact specific. The Court of Appeals noted that the decision of the trial court was done under the recently amended Civ. R. 65.1 which allows a magistrate to issue a civil stalking protection order and that order may be reviewed on appeal without the appellant having filed for review by the trial court prior to the appeal. Judge Carr dissented from the holding since she believed that the appellee did not establish a basis for the protection order.