Can You Impeach a Witness with a Fifth Degree Felony Conviction?

Ohio Evid. R. 609 allows a witness to be impeached with proof of a conviction of a crime.  Subsection A of Evid. R. 609 states what it terms the "General rule." That subsection reads as follows:

(A) General rule. For the purpose of attacking the credibility of a witness:

(1)  Subject to Evid.R. 403, evidence that a witness other than the accused has been convicted of a crime is admissible if the crime was punishable by death or imprisonment in excess of one year pursuant to the law under which the witness was convicted.

(2)  Notwithstanding Evid.R. 403(A), but subject to Evid.R. 403(B), evidence that the accused has been convicted of a crime is admissible if the crime was punishable by death or imprisonment in excess of one year pursuant to the law under which the accused was convicted and if the court determines that the probative value of the evidence outweighs the danger of unfair prejudice, of confusion of the issues, or of misleading the jury.

(3)  Notwithstanding Evid.R. 403(A), but subject to Evid.R. 403(B), evidence that any witness, including an accused, has been convicted of a crime is admissible if the crime involved dishonesty or false statement, regardless of the punishment and whether based upon state or federal statute or local ordinance.

An examination of the above shows that the Rule is setting forth two requirements regarding the type of  criminal conviction that may be used for impeachment. The first is found in Subsection (A) (1) and that is that the crime "was punishable by death or imprisonment in excess of one year pursuant to the law under which the witness was convicted. The second is found in Subsection (A) (3) which states regardless of the punishment evidence of a conviction is admissible if the "crime involved dishonesty or false statement."

Up until the passage of Senate Bill 2 in 1996 all felonies were punishable by a prison sentence in excess of one year. This was because the prison for a fourth degree felony, which prior to the passage of Senate Bill 2 was the lowest degree of felony that could be committed, carried a prison range of 6 months to 18 months. Thus every felony in year, regardless of the type of felony, could be used for impeachment.

That all changed, however, when the General Assembly passed Senate Bill 2. That bill established a new degree of felony, the fifth degree felony, which was punishable by a prison sentence of 6 months to 12 months, a sentence that is not in excess of one year. Under the language of the Rule the prison term has to be in excess of one year which means that if a litigant was attempting to impeach a witness with conviction of a fifth degree felony then the mere fact that the crime was a felony wouldn't end the analysis. The trial court would then have to decide whether the offense was one that involved dishonesty or false statement.

Not all felonies are going to be considered such crimes. This was shown in the case of State v. Chambers, (12th Dist.), 2011 Ohio 1187. In that case the Court of Appeals for the 12th Appellate District faced the issue of whether a defendant was properly impeached in a trial in which he was accused of harboring a "vicious dog" under state law. In the trial it came out that the defendant had been convicted of three offenses. One conviction was for receiving stolen property. The 12th District Court of Appeals found that the crime of receiving stolen property was a crime that involved "dishonesty or false statement" and therefore impeachment was proper. See P43 of the opinion.

The other two crimes, however, for importuning and attempted unlawful sexual conduct with a minor, both fifth degree felonies. The Court of Appeals held that those two convictions could not be used to impeach because both fifth degree felonies were not punishable by death or imprisonment in excess of one year, such convictions "were inadmissible pursuant to Evid.R. 609(A)(2). See State v. Sledge, Trumball App. No. 2001-T-0123, 2003 Ohio 4100, ¶24; see, also, State v. Brown, 100 Ohio St. 3d 51, 2003 Ohio 5059, ¶26-27, 796 N.E.2d 506." See P44.

Now in analyzing whether a fifth degree felony can be used to impeach a witness you must consider the nature of the offense. If the fifth degree felony is, for example, a theft offense, then it will most likely be considered an offense of "dishonesty or false statement" and such impeachment will be allowed. If, however, the offense is one that courts do not consider to be a crime of "dishonesty or false statement" then the fifth degree felony should not be allowed as an impeachment device.

Where this issue could become a problem for the State is in a drug possession trial. There are a fair number of drug possession charges that are fifth degree felonies. R.C. 2925.11, which deals with drug possession offenses, makes possession of drugs a fifth degree felony then goes on to classify drug possession offenses as greater than fifth degree felonies depending on the nature of the drug and the amount of the drug. Thus in a trial for a second offense drug possession case where the defendant had a prior fifth degree felony conviction for drug possession the State might not be able to get such a prior conviction into evidence.

In summary when you a trying a case and you wish to use a prior criminal offense for impeachment don't assume that you can use any felony offense for impeachment. Make sure that it fits the requirements of Evid. R. 609 (A).

Judge Joyce Kimbler's Criminal Docket for February, 16, 2017

The following people appeared in court February 16:

Hannah Ballard, 27, of Durling Drive in Wadsworth, was sentenced to three years of community control sanctions, with 90 days in jail, on one count of Forgery, a fifth-degree felony.

Adrian Sampsel, 23, of Pigeon Run Road in Navarre, was sentenced to three years of community control sanctions on one count of Possession of LSD, a fifth-degree felony.

Gary Brown, 25, of Spieth Road in Medina, pled not guilty to two counts of Aggravated Possession of Drugs, both of which are fifth-degree felonies. A jury trial is scheduled for April 19.

Justin Hartle, 34, of East Normandy Park Drive in Medina, pled not guilty to one count of Vandalism, a fifth-degree felony. A jury trial is scheduled for April 17.

Anthony Hobson, 33, of Lafayette Road in Medina, pled not guilty to one count of Aggravated Possession of Drugs, a fifth-degree felony. A jury trial is scheduled for April 18.

Corey Ryan, 26, of North Lane in Willoughby, pled not guilty to one count of Possession of Cocaine, a fourth-degree felony. A jury trial is scheduled for April 17.

Christopher Salajcik, 35, of Baxter Street in Medina, pled not guilty to two counts of Aggravated Trafficking in Drugs, one of which is a third-degree felony and one of which is a fourth-degree felony, and one count of Aggravated Possession of Drugs, a fifth-degree felony. A jury trial is scheduled for April 17.

Denise Sefcik, 58, of Sweetbriar Drive in Medina, pled not guilty to one count of Forgery, a fifth-degree felony. A jury trial is scheduled for April 18.

Jonathon Wenner, 25, of Crow Road in Litchfield, pled not guilty to one count of Aggravated Possession of Drugs, a fifth-degree felony. A jury trial is scheduled for April 19.

Mediation Course at National Judicial College at the University of Nevada in Reno

Last week, (November 2-6, 2015), I had the opportunity to attend the Civil Mediation Course at the University of Nevada in Reno. It was an excellent course and I had the opportunity to meet with judges all across the United States including a Justice from the Kansas Supreme Court. She was there because the Kansas is contemplating starting a mediation program for appellate cases.

The course consisted of both role plays and lectures It was a very fascinating course and I enjoyed attending the course even as it provided new challenges. Below are pictures of four of the judges who I ate dinner with the last night we were in Reno and the front of the National Judicial College building at the University of Nevada, Reno campus.

JK"S Down and Dirty Hearsay Test

 Speaking of hearsay, let me share what I call “JK’s down and dirty hearsay test”. In determining whether or not something is hearsay you have to decide is it coming into evidence for the truth of the facts contained in the statement. If it is, then it is hearsay, but if it isn’t, then it is not hearsay. The question is how do you quickly determine whether something is coming in for the truth of the matter contained in the statement?

 My quick test is whether the answer would be relevant if it was false. That is, if we knew that the

facts set forth in the answer or statement were false, would it matter to the outcome of the trial or proceeding?

Here is a quick example: Suppose the issue at a hearing on a motion to suppress is whether an officer making a traffic stop had a reasonable and articulable suspicion to make the stop. She testifies that she ran a L.E.A.D.S. check on the vehicle’s license plate and information came back that the person to who the plates were registered was driving under a court-ordered suspension. Now suppose that the information about the owner’s license was false. The fact that it was false wouldn't matter because the relevance of the information is that the information, whether true or false, gave the officer a legal basis for stopping the car. That’s what I mean by assuming that the information is false and then considering whether its relevance depends on its veracity. I am not saying that this test works in all cases, but it works in a lot of them and it can be applied in the heat of battle that is a trial.

Law Student's Insights on Jury Service

Nathaniel E Wilkinson, a law student at Cleveland State University's School of Law, recently served as a juror in Judge Joyce Kimbler's courtroom for a civil trial. Here is an article he wrote about the experience. I think that attorneys who do trial work will find it interesting and informative. If you have any questions for Nathaniel about his jury experience or his article he can be reached at (308)440-2284. 

A Lighthearted and Educational Account of My Time as Juror 28, or The Time I Got to Hear The Words, “Race to The Toilet,” in a Court of Law

                Two weeks ago, I received a piece of mail from the Medina County Court. After a brief mental revisiting of the previous months, I couldn’t think of any laws I had broken, so I opened the letter and discovered that I had been summoned to perform my civic duty as a juror number 28. After filling out the questionnaire, I called to find that yes, Medina County Court of Common Pleas would be seating a jury on Monday, February 9th. I considered attempting to postpone or avoid the duty, but as a first-year law student, I thought that this presented a timely opportunity not often available. While I would miss a few days of class, this chance to participate in a jury trial seemed to offer an educational opportunity that would give me a chance to look at the law from a different perspective. Also, my wife correctly pointed out that $20 a day would be $20 more income than I currently bring home.

As I would be present in court, I put on my best pair of chinos, a nice vertically striped dress shirt and my trusty cashmere coat, and drove to the Medina square. After having a level difficulty finding a parking spot matched only by the NES game Battletoads, I relieved myself of my bevy of weapons (metal detectors), and joined the fray of potential jurors. About 40 citizens of Medina County had reported, ranging from 18 to 80; which would eventually be whittled down to 9; 8 jurors and 1 alternate. The attorney for the Plaintiff addressed the jury pool first, asking questions of each juror about past experiences with the court system, jury selection, occupation, and favorite color. The attorney for the defendant then addressed the jury as a whole, asking general questions about bias and willingness to follow the law. Two jurors were quickly dismissed; one because she was an employee of the defendant (so yeah, pretty clear on that one) and another due to a hearing disability. In a scene right out of a lazily written sitcom, the Judge asked the gentleman if his he would be able to hear the proceedings clearly and without problems. His response of, “Could you repeat that?” was sufficient answer.

                After a brief discussion between the court and counsels, the jury had been selected. Eight numbers were called-I was in the clear. Then the bailiff announced the alternate- lucky number 28. As alternate, I would be present for the entire trial, and if any jurors were unable to complete their service, I would serve in his or her stead. The 8 of us assembled in the jury box, when the defense counsel realized that we were missing a juror- number 64. If juror 64 was unable to be located, we would have to start anew with a fresh, and unavoidably less handsome jury pool. Both counsels and the bailiff ran outside yelling, “Juror 64!” with a fervor similar to a lost toddler in WalMart yelling, “Mom!” Luckily, she was found and we were able to be sworn in, ready for the opening statements.

                The case at bar was a personal injury civil suit. The plaintiff was a paraplegic who was struck by a restroom door opened by the employee of the defendant grocery store. As the employee was acting within the scope of her employment, the case fell under the doctrine of respondeat superior, so the store itself was the defendant. The door struck her wrist and caused injury. As a paraplegic, the plaintiff’s arms, wrists and hands are integral to her independence. If I hurt my hand, no worries, I’ll get it immobilized and use the other hand- 75% of my extremities would still be functional. The plaintiff, unfortunately, suffered a marked decrease in the quality of her life as a result of the injury, a fact which the plaintiff’s counsel repeated ad nauseum. The main issue of the case, per the plaintiff’s attorney, was whether or not the employee exercised reasonable care in opening the restroom door. He proposed that the extent of the injuries suffered provided evidence that the employee did not use reasonable care when opening the restroom door. Around 90% of the plaintiff’s attorney’s time was split between damages and relating how independent the plaintiff was prior to the incident, despite the fact that opposing counsel was not contesting either of those issues, with the small exception of the extent of damages. The plaintiff also slipped while getting out of her new, shorter bed 13 months after the restroom door incident, and was attempting to recover damages for that as well. Since I recently completed Torts with Professor Peter Garlock, I know pretty much all there is to know about negligence, legal cause, and intervening and superseding causes, and thus was mightily surprised that the plaintiff included that incident. The additional damages were only about $1000, compared to the $12,000 from the restroom door incident, and the requested $100,000 for the reduction in quality of life.

The defense counsel spoke primarily about the employee’s duty to behave reasonably, as well as the foreseeability that her actions would cause injury. Unfortunately for the plaintiff, as the restroom was directly in front of the service desk of the grocery store, there was surveillance footage of part of the incident. To save storage space, the video was recorded at 5 frames per second, which had the unexpected benefit of enabling the viewer to fairly accurately gauge the speed of the door opening during the 5 minutes of video. During the video, four people in total entered the restroom, and the plaintiff’s opening was the least forceful, second only to the plaintiff’s. As the alternate, I was unable to be present for deliberation, but this seemed to be the primary issue among the real jurors. After a short amount of deliberation, the jury found for the defendant.

Things I have learned:

While one jury on one civil case in a relatively small county is not a statistically significant sample, I believe my experience provided some general knowledge that might offer some edification for a prospective lawyer. The jury on which I served consisted of 8 people, 3 men and 5 women. There was a retired schoolteacher, an autoshop teacher, a retired tool maker; everyday, salt-of-the-earth folk. My 5 months of legal education was the greatest amount of legal education in the jury room, Law and Order marathons notwithstanding. When submitting briefs, the reader is presumed to be an educated legal reader, but when addressing the jury, it’s just folks. Normal, everyday folks. These are some observations I made over the course of the 3 day trial. I’m just a 1L, and could be pretty off base with a lot of these, but these seem to reflect the mood of the jury, and my personal feelings as well.

·         Time is currency: use it wisely

Jurors don’t necessarily want to be there. I am reminded of the old joke, “Jury of my peers? Anyone who cannot get out of jury duty is not my peer.” I was excited for the opportunity because of my career aspirations, but the retired toolmaker was not equally thrilled. Many view jury duty with a similar disdain as a trip to the dentist: they recognize its import to society, but would much rather be watching The Price is Right, hosted by the inimitable Drew Carey. As early on in the proceedings as the end of voir dire, the jurors were sympathetic to the defendant because the counsel for the defense was sensitive to the time concerns of the jury- he addressed the jury as a group because “if I talk to each one of you, we’ll be here all day.” As the trial progressed, there were occasions where the defense counsel was even more verbose than the plaintiff’s, but they were infrequent and with visible cause. From each juror’s perspective, the jury’s time is a scarce resource that should not be wasted. If a juror feels that one of the attorneys is wasting his time, the juror gets a little cranky. Luckily, there were free donuts, which cheered everyone.

·         Choose your battles:

The plaintiff’s counsel spent a great deal of time and the majority of the witnesses establishing his client’s independence and ability prior to the incident, and comparatively little establishing foreseeability of injury or violation of a standard of care. The decline in the plaintiff’s quality of life was completely uncontested by the defense, yet hours were spent convincing the jury of this. As the proverbial horse was dead and buried, the extensive kicking only served to bore and annoy the jury. There was complaining.

·         Ask for everything that is reasonable, then stop.

The inclusion of a slip and fall in the plaintiff’s home 13 months after the restroom door incident in the complaint, despite the comparatively small amount of damages, made it appear that the plaintiff was not seeking just compensation, but any money she could get. Oddly, this approximately $1000 claim felt greedier than the much larger $100,000 request for a decline in quality of life because it was so clearly not connected to the original incident. When one’s case is predicated upon engendering sympathy for the plaintiff, one should avoid even the appearance of avarice.

·         Don’t have a 2 hour videotaped deposition OR If you have to say something that you don’t want the jury to notice, put it in the middle of a 2 hour videotaped deposition.

We were subjected to a videotaped deposition of the plaintiff’s surgeon with a runtime greater than that of The Shawshank Redemption. Under penalty of perjury, I would not testify that every juror’s eyes were open through the entirety of the film. A film that can hold the average person in rapt attention for 2 hours will make millions of dollars. The vast majority of viewers’ minds will wander during a 2 hour film.

·         Decorum

Don’t roll your eyes or look incredulous when the opposition says something you don’t like. It makes you look like a jerk.

·         Clearly and simply explain the law

When pushing a restroom door comes to shove, it all comes down to the law. Jury instructions and interrogatories were written in such a way that it boiled down to the jury being finders of fact, not arbiters of their feelings. A simply written and clearly written yes or no question such as, “Did the employee use reasonable care when opening the restroom door?” takes a lot of the juror’s emotion out of it. Some jurors were sympathetic to the plaintiff and felt she should get “something,” even though they felt that neither the employee nor the employer were negligent. However, through the jury instructions and the interrogatories, the sympathetic component was curtailed, and the law was able to be the focus.

Frequently Asked Questions about "Private Judging" Under R.C. 2701.10

Frequently Asked Questions About Private Judging

What is a "private judge"? A private judge is a retired judge who has registered with the Ohio Supreme Court that he or she is interested in serving as a "private judge" pursuant to Section  2701.10 of the Revised Code.  A private judge then files a form with the Clerks of Courts for the courts in which the private judge will be hearing cases.

What does Ohio Revised Code Section 2701.10 do? It authorizes retired judges to serve as private judges in Ohio courts. It states that such judges" shall have all of the powers, duties, and authority of an active judge of the court in which the action or proceeding is pending." ( See R.C. 2701.10 (C))

How does a case get referred to a private judge? All the parties to a lawsuit file what R.C. 2701.10 refers to as a referral or submission.

What are the requirements for such a referral or submission? R.C. 2701.10 states that the parties must enter into an agreement with the retired judge who is to serve as a private judge in their case.

Who pays for the private judge? The agreement referred to above sets forth the payment that the private judge shall receive for his or her services.  

What else does the agreement do? R.C. 2701.10 requires the parties to pay any expense for the facilities in which the case will be tried and to pay for any personnel needed by the private judge.

Once the agreement is filed, what does the judge on whose docket is pending do? R.C. 2701.10 requires the judge on whose docket the case is pending to order the case transferred to the private judge in accordance with the agreement of the parties.

Does a private judge get to use the active judge’s courtroom for hearings? No. R.C. 2701.10 states that the court in which the case is pending does not have to provide the private judge with facilities, courtroom or personnel. .

Can a private judge perform jury trials? No. The Ohio Supreme Court has held that R.C. 2701.10 does not allow private judges to hear jury trials.

Can a private judge do criminal trials? No. R.C. 2701.10 restricts the use of private judges to "civil actions".

Can a party appeal a decision of a private judge? Yes. All decisions of a private judge are subject to appeal as they would be if made by the judge to whose docket the case was assigned. (See R.C. 2701.10 (D))

Does R.C. 2701.10 contain requirements for the private judge? The private judge is required to hear the case in accordance with the agreement, issue findings of fact and conclusions of law if requested by the parties in accordance with the Ohio Rules of Civil Procedure. The decision issued by the private judge has the same effect as a decision issued by the judge on whose docket the case was pending. R.C. 2701.10 refers to the judges on whose docket the transferred case was pending as an "active" judge.

What are the advantages of a private judge?

Certainty: Private judges are retained to hear a specific case. This means that your case is not one of hundreds pending on that judge's docket. Your case will have priority and will not be continued because a criminal case has precedence. Your case will be tried at a date and time agreed to by the parties and the private  judge.

Discretion: Some litigants are reluctant to come to a county courthouse where their friends, neighbors, or relatives may see them. Private judges try the cases in the facilities agreed to by the parties.

Convenience: Private judges are not required to try their cases in the county courthouse. In fact, they usually won't be trying them in the county courthouse. The case can be tried anywhere the parties agree.  

Can only certain issues be referred or submitted to a private judge? Yes. R.C. 2701.10 allows a private judge to hear just certain issues in a case.

Is retired Judge James L. Kimbler registered as a private judge? Yes. Judge James L. Kimbler registered with the Ohio Supreme Court to serve as a private judge. Judge Kimbler is currently  registered with the Clerks of Courts of Medina, Cuyahoga, Summit, Lorain, Wayne and Ashland counties.

Can Judge Kimbler hear cases in other counties then the ones listed above? Yes. R. C. 2701.10 states that there is no limitation on the number of counties in which a retired judge may serve as a private judge. If you are interested in retaining Judge Kimbler as a private judge in other counties, or if you have any questions about private judges,  please contact him at 330-322-6737 or email him at jameskimbler@northcoastadrservices.com

65th Birthday Pictures

My staff was kind enough to throw me a party on Tuesday, April 15, which was my 65th birthday. Below are some pictures from that day. Thanks to Amanda, Leeanne, Karen and Barb for making all the arrangements. My thanks to all of those who came. It was a very nice day.

This was how it looked from our back deck when I woke up that morning

My administrative assistant, Amanda Armstrong, set up our "smart board" for the party

Birthday cake with the bench festooned for the party

People arriving as my magistrate, Barb Porzio, gets ready to cut pizza sheets

Two of my staff, Karen and Leeann, at the left near the doors talking to guests

Attorney Ed Bowers, his wife, Lynda, and Attorney Mary Beth Corrigan

People at the party in the courtroom. 

More people in the courtroom

Summit County Appellate Decisions for February, 2014

A. L. v. Stephens, 2014-Ohio-677 (Ohio Ct. App., Summit County Feb. 26, 2014) reversed a decision of the Summit County Common Pleas Court because the decision of the magistrate didn't comply with Civ. R. 53. Therefore the civil stalking protection order should not have been issued. 

State v. Brooks, 2014-Ohio-679 affirmed the decision of the trial court since, as Brooks' counsel has argued, there were no appealable issues in the case. The Ninth District conducted its own examination of the record and reached the same conclusion as appellate counsel. 

State v. Davis, 2014-Ohio-687 from Lexis: "HOLDINGS: [1]-Defendant's convictions for aggravated burglary and aggravated robbery were not against the manifest weight of the evidence because any gaps or inconsistencies in the victim's testimony regarding what occurred at his home were not so significant that the jury clearly lost its way when it credited the victim's testimony and convicted defendant." Trial court affirmed. 

State v. Chesrown, 2014-Ohio-680 from Lexis:"HOLDINGS: [1]-Court did not err in failing to hold a hearing prior to denying a petition for post-conviction relief under R.C. 2953.21(E) because petitioner failed to submit evidentiary materials containing sufficient operative facts to demonstrate that he was prejudiced by his trial counsel's alleged ineffectiveness; petitioner simply attached a self-serving affidavit accusing another person of making the videos of the child because "they were of the type that the other person would have produced."" Trial court affirmed. 

State v. Shepherd, 2014-Ohio-686 affirmed the trial court's decision that Mr. Shepherd was not entitled to a hearing on his motion for discharge since he did not provide any authority supporting his arguments. 

Sandor v. Marks, 2014-Ohio-685 affirmed the granting of a motion for summary judgment in favor of an attorney in a legal malpractice case. From Lexis: "HOLDINGS: [1]-A client's legal malpractice claim against an attorney, filed on November 8, 2012, was time-barred by R.C. 2305.11(A) because the attorney established the attorney-client relationship terminated on November 7, 2011, when the attorney sent written notice to the client regarding the termination; the attorney presented a certified mail receipt showing the termination letter was sent on that same day and a time-stamped copy of his notice of withdrawal filed in the underlying action that same day; [2]-Because the trial court did not err in rendering judgment in favor of the attorney on the client's legal malpractice claim, summary judgment was appropriate in favor of the law firm on the client's vicarious liability claim as well."

State v. Hach, 2014-Ohio-682 affirmed the trial court's dismissal of an untimely petition for post-conviction relief.  

State v. Hendricks, 2014-Ohio-683 affirmed the trial court's dismissal of an untimely filed petition for post-conviction relief. 

State v. Lollis, 2014-Ohio-684 from Lexis: "HOLDINGS: [1]-There was sufficient evidence to sustain the aggravated murder conviction under R.C. 2903.01(B) because the text messages provided showed a common plan between defendant and another man to violently rob the victim. The evidence was also sufficient for the jury to reasonably have inferred that defendant had knowledge that the other man would be using a weapon or engaging in violence of a type reasonably likely to produce death, as he instructed the man to "tare em up;" [2]-Although there was no direct evidence that the other man used a gun in the commission of the planned robbery, there existed circumstantial evidence from which a jury could reasonably have inferred that he did so for the firearm specification under R.C. 2941.145(A); [3]-Because aggravated murder was a special felony, defendant was subject to parole, not post-release control on that conviction."

Regions Bank v. Sabatino, 2014-Ohio-580 from Lexis: "HOLDINGS: [1]-The trial court did not err in granting summary judgment to a bank in its suit to recover a debt owed by appellant. That no evidence was presented that the bank ever sent appellant a notice of default was immaterial, because while the parties's agreement required notice of default for suspensions or reductions of credit, it did not require notice of default for termination and acceleration of the obligation." Trial court affirmed. 

State v. Robinson, 2014-Ohio-579 from Lexis: "HOLDINGS: [1]-Given the totality of the circumstances, at the time of the stop, the informant's tip was not sufficiently corroborated to furnish reasonable suspicion that the occupants of the vehicle were committing or about to commit a crime as neither officer was able to verify the significant aspects of the informant's tip that detailed the suspect's future behavior, namely, that the subject, a black male, would go to the restaurant with a white female to complete a drug deal." Trial court reversed. 

Lykes v. Akron Dept. of Public Serv., 2014-Ohio-578 from Lexis:  "HOLDINGS: [1]-The property owner could not argued that his trial counsel was ineffective because he had no right to counsel for purposes of his administrative appeal; [2]-The trial court abused its discretion and acted unreasonably in dismissing the administrative appeal under Civ.R. 41(B)(1) on the basis of his failure to prosecute because it did not consider the unique posture of the administrative appeal before imposing the harshest sanction possible. When he contacted the city after acquiring the property about his options to prevent the demolition of the house he had just purchased, he was advised that his only recourse was to file an administrative appeal, which he did and then sought, albeit clumsily, a stay of the condemnation order and equitable relief from an order which only subsequently implicated his interests after it was issued." Trial court reversed. 

In re T.K., 2014-Ohio-576 from Lexis: "Because the mother not only consented to the award of legal custody to the grandparents, but also specifically waived her right to trial under circumstances where she was represented by counsel, there was nothing in the record to suggest that the mother did not understand the import of her decisions. Thus, the mother could not argue on appeal that the agency failed to make reasonable efforts to eliminate the children’s continued removal from the home under R.C. 2151.419; [2]-In exercising her residual parental privilege to determine the religious affiliation of her child, under R.C. 2151.353(A)(3)(c), the mother could not control the child's every exposure to religion beyond the common understanding of the phrase." Trial court affirmed. 

State v. Litten, 2014-Ohio-577 from Lexis: "HOLDINGS: [1]-Defendant’s convictions for rape and kidnapping, under R.C. 2907.02(A)(2) and R.C. 2905.01(A)(4) were not against the manifest weight of the evidence because the victim, defendant’s 86-year-old grandmother, testified that defendant grabbed her left breast and digitally penetrated her. Although defendant’s daughter did not testify that she heard the victim screaming, defendant’s version of the events also encompassed screaming on the part of the victim; [2]-Pursuant to R.C. 2941.25, the trial court erred by not merging the convictions for rape and kidnapping because the kidnapping was, in fact, incidental to the rape. Defendant’s attack on his grandmother amounted to one continuous course of conduct, he kidnapped her for the sole purpose of raping her, and the kidnapping did not result in an increased risk of harm to the victim, was not prolonged, secretive, or substantial. Judgment affirmed in part, reversed in part, and remanded."

Beasley v. Fischer's Foreign Cars, Inc., 2014-Ohio-678 from Lexis: "HOLDINGS: [1]-A letter written to a magistrate by the owner of a car that objected to the magistrate's calculation of his damages and the date from which interest would accrue with regard to a repair bill refund constituted "written objections" for purposes of Civ.R. 53(D)(3)(b)(i); [2]-The trial court erred in adopting the magistrate's decision on the sole basis that no objections had been filed with regard to the magistrate's decision." Trial court reversed and case remanded. 

Uhl v. McKoski, 2014-Ohio-479 from Lexis: "HOLDINGS: [1]-A decision granting summary judgment in favor of appellees was proper on appellant's claims after she was bitten by a dog, as the trial court did not err in concluding there was no dispute of fact as to whether appellants harbored the dog; in response to summary judgment, appellant did not present evidence that created a material dispute of fact as to whether appellants knew about the dog, there was no evidence that they had been at the premises after the subject property was leased, and there was no evidence that they had seen or were aware of a "Beware of Dog" sign at the premises." Trial court affirmed. 

Tennant v. Gallick, 2014-Ohio-477 from Lexis: "OVERVIEW: HOLDINGS: [1]-Small claims court properly adopted a magistrate's decision to enter a default judgment against an attorney who failed to appear for trial in a small claims action filed by a client, arising from the attorney's failure to timely file an appeal for her son, as agreed, as the fact that the attorney had filed a motion to dismiss did not preclude the default judgment under R.C. 1925.05(A) because no answer was required and the statutory notification indicated that appearance at the hearing was necessary; [2]-Further, as the attorney failed to appear at the small claims trial, he did not present any evidence in support of his objections, such  that his assigned errors lacked merit.OUTCOME: Judgment affirmed."

State v. Culver , 2014-Ohio-681, from Lexis: "HOLDINGS: [1]-Defendant’s convictions for aggravated burglary under R.C. 2911.11(A)(2) and aggravated robbery under R.C. 2911.01(A)(1) were not against the manifest weight of the evidence because the evidence demonstrated that defendant and his brother worked together with the purpose of stealing from the victim through the use of deception. The officer testified that the two witnesses’ statements were consistent with his observations; [2]-Because the trial court did not in reality merge the counts of aggravated burglary and aggravated robbery, but rather effectively ordered them to run concurrently, defendant’s sentence was contrary to law. The second judgment entry of conviction did not indicate which count was merged into the other. OUTCOME: Judgment affirmed in part, reversed in part, and remanded."

Castin, LLC v. First Am. Title Ins. Co., 2014-Ohio-476, from Lexis: "OVERVIEW: HOLDINGS: [1]-A title insurer was not obligated to take any action in regard to a purported defect in a deed because the insured did not suffer loss or damage as a result of a challenge to the title by a third party; rather, all of the damages alleged by the insured arose from its own actions in challenging the title. OUTCOME: Judgment affirmed."

State v. Easley, 2014-Ohio-575, from Lexis: "OVERVIEW: HOLDINGS: [1]-Sufficient evidence supported defendant's conviction for breaking and entering under R.C. 2911.13(A), because he admitted that he was trespassing, copper plumbing was stolen from the house, the back door had been kicked in, and his DNA matched the blood sample found in the kitchen; [2]-The jury concluded that defendant, by force or stealth, unlawfully entered the vacant home with the purpose to commit a theft offense; [3]-Prosecutorial misconduct did not deprive defendant of his right to receive a fair trial; [4]-The prosecutor's comment that no evidence was presented to support defendant's version of the events as described in his opening statement was not improper; [5]-The evidence without the prosecutor's alleged improper rebuttal comment supported defendant's conviction beyond a reasonable doubt. OUTCOME: Judgment affirmed."

State v. Powe, 2014-Ohio-478, affirmed the decision of the trial court denying Powe's motion for merger. Powe argued that he was sentenced for two offenses that were allied offenses of similar import. Powe argued that his sentence was void, but the Court of Appeals has held that failure to merge allied offenses does not result in a void sentence. Further the appellate court held that Powe had waited too long to bring a motion for post-conviction relief. 

State v. Broadt, 2014-Ohio-370, from Lexis: "OVERVIEW: HOLDINGS: [1]-The trial court did not comply with R.C. 2951.041(F) and the requirements of due process when it terminated defendant from the intervention in lieu of conviction progam, as defendant, who had appeared in court for a status call, had no prior notice that she was subject to termination and no opportunity to prepare and present information in her defense. OUTCOME: Reversed and remanded."

State v. Heard, 2014-Ohio-371, affirmed the decision of the trial court denying Heard's motion to withdraw his guilty plea. 

State v. Shover, 2014-Ohio-373, from Lexis: " OVERVIEW: HOLDINGS: [1]-Assuming without deciding, that the Second Amendment extended outside the home, and specifically to motor vehicles, the trial properly concluded that intermediate scrutiny applied to R.C. 2923.16(B), improperly handling a firearm in a motor vehicle, because it acted as a regulation to preserve the safety of Ohio drivers and the State's law enforcement personnel; [2]-The trial court properly reinstated defendant’s conviction for improperly handling firearms in a motor vehicle on remand, after determining that R.C. 2923.16(B) was constitutional; [3]-The trial court failed to comply with the community service notifications in R.C. 2947.23 when it imposed costs at the sentencing hearing; [4]-The trial court erred by failing to consider defendant’s ability to pay under R.C. 2929.19(B) before imposing a $500 fine. OUTCOME: Judgment affirmed in part, reversed in part, and remanded."

State v. South, 2014-Ohio-374, from Lexis:  "OVERVIEW: HOLDINGS: [1]-Defendant failed to show that his counsel was ineffective for failing to file a motion to suppress because the officer testified that the.087 result he received when he performed defendant’s blood alcohol concentration test was an accurate result and that the BAC Datamaster was regularly calibrated for accuracy. The issue regarding exactly when defendant had consumed alcohol (i.e., whether he drank it before or after the crash) was simply a matter of credibility for the trier of fact to determine; [2]-The five-year sentence on his underlying operating a vehicle while under the influence of alcohol (OVI) conviction was contrary to law. Because the current version of R.C. 2929.14 was applicable, defendant’s third-degree OVI felony under R.C. 4511.19(A) was subject to a maximum of 36 months in prison, pursuant to R.C. 2929.14(A)(3)(b). OUTCOME: Judgment affirmed in part, reversed in part, and remanded for resentencing on his OVI conviction."

State v. Wallace, 2014-Ohio-375, from Lexis: "OVERVIEW: HOLDINGS: [1]-The trial court did not err by granting defendant's motion to suppress evidence of marijuana seized by a police officer from the pocket of the sweatshirt that he was wearing at the park, because the State failed to prove that the warrantless search fell under one of the well-delineated exceptions to the warrant requirement of the Fourth Amendment, U.S. Const. amend. IV. 
OUTCOME: Judgment affirmed."

State v. Wilson, 2014-Ohio-376, from Lexis: "OVERVIEW: HOLDINGS: [1]-The trial court did not abuse its discretion in denying defendant’s motion for an identification expert because the motion failed to satisfy his burden of a "particularized showing" that there was a reasonable probability that such an expert would aid in his defense and that he would be denied a fair trial if his request was denied; [2]-The trial court did not abuse its discretion when it found that the recorded jailhouse statements were relevant and admissible because the statements, wherein defendant expressed displeasure about the police stating that there were two victims, indicated he knew that only one person was hit by bullets; [3]-The record was devoid of any evidence that the trial court considered the issue of whether felonious assault and having a weapon while under a disability were allied and of similar import under R.C. 2941.25 prior to imposing sentence.OUTCOME: Judgment affirmed in part, reversed in part, and remanded for a merger determination."

Wuscher v. Wuscher, 2014-Ohio-377, from Lexis: "OVERVIEW: HOLDINGS: [1]-A trial court abused its discretion when considering a wife's motion to modify spousal support because the court refused to consider sources for the husband's income outside of his base salary, which was $ 275,000 in 2012 with a total income of $ 573,600; the parties' financial agreement, incorporated into the divorce decree, indicated their clear intent for the court to address substantial changes in the parties' income not contemplated at the time of the decree; [2]-The court abused its discretion by refusing to modify the husband's child support obligation because the court mistakenly believed the parties agreed to never calculate the child support obligation on income above $ 150,000, and, after failing to properly consider the parties' incomes, the court did not employ the requisite child support computation worksheet, R.C. 3119.022. OUTCOME: Judgment reversed and cause remanded."

Lorain County Appellate Decision for February, 2014

There were five appellate decisions for Lorain County cases released in February, 2014, by the Court of Appeals for the Ninth Appellate District. Two were appeals from criminal cases, two were appeals from civil cases, and one was an appeal from the Lorain County Juvenile Court regarding termination of a father's parental rights. 

The two civil appellate decisions were Third Fed. S. & L. Assn. v. Haupt, 2014-Ohio-348, released on February 3, 2014 and  Varga v. Drees Co., 2014-Ohio-643, released on February 24, 2014. Both were appeals from decisions of the Lorain County Common Pleas Court. 

The Haupt case involved the issue of whether a trial court errs if it does not give notice of a magistrate's decision under Civ. R. 53. In the Haupt case the record did not reveal that Haupt was served with a copy of the magistrate's order and therefore did not have an opportunity to object to the order granting the bank's motion for summary judgment prior to the trial court adopting the order and granting the bank's motion. 

The Varga case involved the issue of whether a trial court should have stayed a lawsuit between the parties which concerned the building of a residence for the Vargas by the Drees Company. In reversing the trial court the appellate court held that if arguably the causes of action can be related to the subject matter of the contract, and if the contract contains an arbitration clause, then the case must be stayed by the trial court and the parties given the opportunity to arbitrate the dispute. In this case the appellate court found that the issues raised by the Vargas' lawsuit arguably arose out of the contract and therefore the action should be stayed. 

The two criminal appellate decisions were State v. D'Agostino,2014-Ohio-551, and  State v. Marrero, 2014-Ohio-553.

In D'Agostino the appellate court held the following:"[1]-Defendant failed to show that her appointed counsel was suffering from a medical condition that affected her ability to represent defendant; appointed counsel conducted voir dire, gave both the opening statement and closing argument, cross-examined the victim, and conducted the direct examination of defendant; [2]-By having her own expert testify extensively about his methodologies and her credibility, defendant opened the door for the State to rebut that testimony through its expert; as such, defendant could not demonstrate prejudice as a result of her counsel's failure to object to the testimony of the State's expert; [3]-The trial court erred by sentencing defendant for both felonious assault and domestic violence as the offenses were allied offenses of similar import; hence, it was necessary to remand the matter for the trial court to issue a nunc pro tunc entry." (Quote from decision on Lexis."

In Marrero the appellate court found that the defendant had filed a petition for post-conviction relief untimely and therefore the trial court did not have jurisdiction to grant the relief sought. The trial court's dismissal of the petition was affirmed. 

The remaining case was a case from the Lorain County Juvenile Court. The case was captioned In re A.H., 2014-Ohio-552.  In that case the appellate court affirmed the order of the trial court terminating the parental rights of A.H.'s father. From Lexis: "HOLDING: [1]-A father's parental rights over his child were properly terminated because the evidence supported the finding that the child was in the care of the social service agency for the requisite period of time pursuant to R.C. 2151.414(B)(1)(d); [2]-Accordingly, even if the father's challenge to the termination under § 2151.414(E) was not supported by the record, any error was not reversible because it did not result in prejudice to the father; [2]-The record supported the trial court's conclusion that termination of parental rights and permanent custody in the social service agency was in the child's best interests based on consideration of the factors under § 2151.414(D)(1)(a)-(d), the child's need for a secure permanent placement, and the father's inability to provide that."

Medina County Appellate Decisions for February, 2014

The Court of Appeals for the Ninth Appellate District released three decisions in February for appeals out of Medina County. All three of them were criminal cases. Two of the cases involved search and seizure issues. The third involved an issue of sufficiency of the evidence. 

The two search and seizure opinions were State v. Harper, 2014-Ohio-347, released on February 3, 2014, and State v. Horvath, 2014-Ohio-641 released on February 24, 2014. 

In the Harper opinion the appellate court reversed the Medina County Court of Common Pleas that had ruled that a traffic stop was based on a reasonable and articulable suspicion and that the Ohio Highway Patrol Trooper making the stop had conducted a valid inventory search. The appellate court disagreed with both of those conclusions. Since the State had introduced evidence seized from Ms. Harper's car at her trial for drug possession her conviction was reversed and the case was remanded. On remand the State moved to dismiss the charge since it could not sustain its burden of proof without the seized evidence. 

In the Horvath opinion the appellate court also reversed the trial court, but in that case the reversal was of the granting of a motion to suppress by the Medina Municipal Court. In Horvath the Medina Municipal Court had ruled that weaving by a motorist within his or her own lane does not constitute a traffic violation and therefore cannot lead to a traffic stop. 

The appellate court held that the case should be remanded to the trial court for that court to determine whether, given the particular facts of the case, Horvath's weaving raised a reasonable suspicion that his operation was impaired. 

State v. Lewis, 2014-Ohio-642, released on February 24, 2014,  concerned the issue of whether the evidence introduced in the Medina County Common Pleas Court was sufficient to sustain a conviction for domestic violence. The appellate court held that it was and affirmed Lewis's conviction, which had resulted in a 10 month prison sentence. 

Wayne County Appellate Decisions for February, 2014

The Court of Appeals for the Ninth Appellate District released one opinion in February for a case out of Wayne County. Poulson v. Fraternal Order of the Eagles, Inc., 2014-Ohio-554, concerned whether the Wayne County Court of Common Pleas had erred in awarding summary judgment to the Fraternal Order of Eagles in a slip and fall case. 

Poulson had brought suit under two theories. One was negligence and the other was negligence per se. The negligence per se cause of action was based on a Wooster, Ohio ordinance that incorporated the Ohio Basic Building Code. The Court of Appeals found that the Eagle's motion for summary judgment had not addressed the cause of action for negligence per se. Therefore the motion for summary judgment should not have been granted on that cause of action. 

The appellate court further found that the motion for summary judgment was well taken with respect to the cause of action for negligence. Therefore the trial court's order was affirmed on that cause of action. 

Summit County Appellate Decisions for January, 2014

State v. Furman, 2014-Ohio-20 affirmed Ms. Furman's conviction for aggravated burglary and aggravated robbery by the Summit County Common Pleas Court. That court sentenced her to 18 years in prison, nine years on each count. In an earlier appeal the Court of Appeals for the Ninth Appellate District ordered a new sentencing hearing so that the trial court could consider whether the two offenses were allied offenses of similar import under a State v. Johnson analysis. The trial conducted such an analysis and found that the offenses were not allied offenses under State v. Johnson and re-sentenced Ms. Furman to 18 years in prison. 

Ms. Furman raised two issues on appeal. The first issue was whether the trial court erred in determining the two offenses were not allied offenses. The second was whether the trial court erred in not giving her a minimum sentence. In both cases the appellate court found that the failure to enter the presentence investigation report into the record meant that the appellate court could not review the sentence and therefore has to presume regularity. Such a presumption meant that the trial court would be affirmed. 

State v. Nichols, 2014-Ohio-102 affirmed a decision of the Summit County Common Pleas Court denying Nichols's motion for post-conviction relief. The appellate court found that he had not established that he was entitled to the relief and therefore affirmed the denial of his petition. 

State v. Rogers, 2014-Ohio-103 affirmed a decision of the Summit County Common Pleas Court convicting Rodgers of a drug offense. Rodgers challenged his conviction on the grounds that the trial court erred in denying him motion to suppress. He argued that the officer who arrested him did not have a reasonable and articulable suspicion that he was committing an offense. He also argued that the trial court relied on facts that were not proved by the hearing. 

In denying Rodger's assignment of error the appellate court noted that Rodgers was operating a motor vehicle with restricted license plates; that he was behind the wheel of a car in a high-crime area; that the car was idling; and that when he asked Rodgers about the restricted operator's license, Rodgers could not verify that he was operating the car for work-related purposes. While the appellate court said that the mere fact that a car has restricted license plates does not, by itself, give rise to a reasonable suspicion, in this case there were other corroborating factors. Therefore the conviction was affirmed. 

Haley v. Nomad Preservation, Inc., 2014-Ohio-181 affirmed a two decisions of the Summit County Common Pleas Court. In one decision the trial court had granted judgment to a defendant after converting a motion to dismiss under Civ. R. 12 (B) into a motion for summary judgment so that it could consider evidence. In the other decision the trial court had granted a motion to dismiss on the grounds that the trial court did not have personal jurisdiction over the moving defendant. 

Haley argued that the trial court erred in considering material outside of the four corners of the motion which, in effect, converted the motion to dismiss into a motion for summary judgment. In rejecting this argument the appellate court wrote the following: "Not only had the trial court considered other evidence the first time it ruled on the motion, this Court explained in its decision that it was proper for the trial court to consider other evidence so long as notice was given. In light of the procedural history of this particular case, we cannot say that the trial court’s consideration of Mr. Ayache’s affidavit was unexpected or that Mr. Haley did not have an adequate opportunity to oppose the evidence." 

The appellate court also found that granting the motion for dismissal because of a lack of personal jurisdiction was also proper. Haley argued that the defendant filing the motion had acted untimely. In rejecting this argument the appellate court wrote the following: "Mr. Haley has not cited any authority suggesting that a party forfeits his right to move to vacate a judgment that was rendered without personal jurisdiction merely because of the passage of time. See Civ.R. 12(H)(1) (setting out specific conditions under which a party waives the defense of lack of jurisdiction over the person); Timekeeping Sys., Inc. v. Safety Protection Universal Ltd., 8th Dist. Cuyahoga No. 99714, 2013-Ohio-3919, ¶ 12."

State v. McDaniel, 2014-Ohio-183 affirmed Mr. McDaniel's convictions for murder and felonious assault. McDaniel argued that the two offenses were allied offenses of similar import and that the State should have been made to elect the offense for which it wanted McDaniel sentenced. The Court of Appeals rejected this assignment of error. It found that under the analysis dictated by State v. Johnson the two offenses were not allied offenses of similar import. 

Ramoso v. Ramoso, 2014-Ohio-28 overruled the assignment of error brought by Mrs. Ramoso. She argued that the Summit County Domestic Relations Court erred by dismissing her objections to a magistrate's decision without a hearing. The Court of Appeals rejected this argument noting that she did not file a transcript with the objections. It pointed out that Civ.R. 53(D)(3)(b)(iii) requires such a transcript and failure to file one allowed the trial court to dismiss the objections. 

State v. Reeves, 2014-Ohio-282 affirmed the conviction of Mr. Reeves for possession of heroin and affirmed the forfeiture of money claimed to be proceeds from the felony drug offense. It also affirmed his conviction for having weapons while under a disability. 

Reeves raised three assignments of error. The first was that the evidence was insufficient to support his conviction. The second was that the guilty verdicts were against the manifest weight of the evidence. The third was that the trial court did not require the State to produce evidence that the order of forfeiture was proportional to the offense. All three assignments of error were overruled. In overruling the third assignment of error the appellate court noted that the law does not require a proportionality review when the property being forfeited is money derived from the offense.   

Lorain County Appellate Decisions for January, 2014

State v. Powell, 2014-Ohio-63 affirmed Mr. Powell's conviction for one count of rape. Powell argued on appeal that the verdict, which came after a bench trial, was based on insufficient evidence and was against the manifest weight of the evidence. Both assignments of error were rejected. 

State v. Thomas, 2014-Ohio-64 affirmed a decision of the Lorain County Common Pleas Court denying his motion to "correct" a void decision of that court. Thomas argued that his conviction of aggravated murder was defective because the determination of his guilt wasn't made by a three judge panel. 

The appellate court pointed out that failure to have a three judge panel doesn't deprive a common pleas court of subject matter jurisdiction. If a common pleas court has erred in not having a three judge panel hear a defendant's case, that error must be brought up on a direct appeal, not in a post-conviction proceeding or in a motion for relief pursuant to a writ of habeas corpus. 

Third Fed. S. & L. Assn. v. Haupt, 2014-Ohio-348 reversed a decision by the Lorain County Common Pleas Court granting judgment to Third Federal Savings & Loan. Ms. Haupt argued that she had not been served a copy of the magistrate's decision and therefore didn't have the opportunity to file objections to the decision. The Court of Appeals agreed with her contention. There was also an interesting issue regarding whether the appeal was timely. By a 2-1 decision the Court of Appeals found that it was timely. The dissent believed that the appeal was not timely.  

Wayne County Appellate Decisions for January, 2014

PNC Bank, Natl. Assn. v. West, 2014-Ohio-161 overruled the granting of a motion for summary judgment to the plaintiff by the Wayne County Common Pleas Court. The appellate court found that the "evidence" offered in support of the motion for summary judgment and was intended to establish that the bank had standing to bring the action wasn't admissible under Ohio's Rules of Evidence. Therefore the summary judgment was reversed and the cause remanded back to the trial court. 

State v. Raber, 2014-Ohio-249 affirmed an order of the Wayne County Common Pleas Court denying Mr. Raber's motion to expunge his record or seal his conviction. The basis for the trial court's ruling was that a conviction for the offense of sexual imposition, a third degree misdemeanor, is not one that can be expunged or sealed. The appellate court agreed and affirmed the trial court's ruling.