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.