Barberton Man Found Guilty in One Day Trial

Michael A. Maile, formerly of Liberty Avenue in Barberton, Ohio, was found guilty by a jury in Judge Kimbler's court on Tuesday, May 10, 2011. The entire trial took place in one day, starting with jury selection at 10 am and concluding with Judge Kimbler imposing a 10 month prison sentence at 4:15 pm. The State called three witnesses and Mr. Maile exercised his constitutional right not to testify or present evidence.

Mr. Maile was charged with one count of Drug Possession, a fifth degree felony. The drug involved was oxycodone. The charge grew out of a arrest that took place on February 15, 2010 when Wadsworth Police Department officers executed an arrest warrant for Mr. Maile that had been issued by the Summit County Common Pleas Court. During the arrest, the Wadsworth officers discovered marijuana and pills.

The pills turned out to contain oxycodone. Mr. Maile admitted that the pills were his and that he had been crushing them and then inhaling them. The officer also found scales of the type commonly used for weighing drugs and rolled up dollar bills with a white residue on them.

Following the verdict, Mr. Maile and the State waived a pre-sentence investigation report and Judge Kimbler imposed sentence. Judge Kimbler imposed a 10 month prison sentence but gave him jail time credit of 158 days. The prison sentence was consecutive to the six year prison sentence that Mr. Maile is presently serving out of Summit County.

Brunswick Man Found Guilty of Drug Trafficking, Drug Possession

Carl J. Curry, 39, of Brunswick, Ohio, was found guilty by a jury of two drug related charged in Judge Kimbler's courtroom after a two day jury trial. The State of Ohio had charged Mr. Curry with both drug trafficking and drug possession based on an alleged sale of cocaine to a confidential informant at a bar in Brunswick on March 24, 2010.

The charges, which are both fifth degree felonies, are considered to be allied offenses of similar import. This means that while Mr. Curry can be charged with both offenses and convicted of both offenses, he can only be sentenced on one of the charges.

After the jury had been discharged, the State of Ohio moved for a revocation of Mr. Curry's bond. Judge Kimbler denied the motion for a bond revocation, noting that Mr. Curry had always appeared for court hearings. Judge Kimbler ordered a pre-sentence investigation and set May 12, 2011 as the date for Mr. Curry's sentencing.

Youngstown Man Found Guilty of Drug Possession by Jury

Mr. Carvillia J. Gilbert, Jr., of Rush Boulevard in Youngstown, Ohio was found guilty by a jury of one count of Drug Possession, a fifth degree felony following a two day jury trial. The charge arose out of a traffic stop on September 15, 2010 in Harrisville Township on IS 71 near the 208 mile marker. The drug involved was 886 grams of Marijuana.

Mr. Gilbert was a passenger in the car. The driver was also charged. Mr. Gilbert's attorney argued that while there was no doubt that the trunk of the car contained 886 grams of marijuana in two freezer bags, the State hadn't proved that Mr. Gilbert knew that the drug was in the car's trunk or that he had ever exercised dominion and control over the marijuana. The State argued that the circumstantial evidence introduced was sufficient for the jury to find that Mr. Gilbert had constructively possessed the drug. "Constructive possession" is recognized in drug possession cases.

Judge Kimbler continued Mr. Gilbert's bond and will impose sentence at a later date.

Jury Finds Hell's Angel Member Guilty of Felonious Assault

Early Monday afternoon the jury that was deliberating on whether Scott Stage was guilty of felonious assault returned a guilty verdict on that charge. On Friday the same jury had returned a not guilty verdict in the co-defendant's case. After receiving the verdict and excusing the jury, Judge Kimbler ordered a pre-sentence investigation. Judge Kimbler will impose sentence on April 28, 2011 at 2:30 pm. Following the verdict, Mr. Stage was remanded back to the Medina County Jail.

In addition to sentencing Mr. Stage on April 28, 2011, Judge Kimbler will also decide whether Mr. Stage's motorcycle should be forfeited to the state and whether Mr. Stage should be sentenced as a repeat violent offender.

Mr. Stage was convicted of a second degree felony, which carries a prison sentence of two years up to eight years. If he is sentenced as a repeat violent offender, Judge Kimbler could impose a prison sentence in addition to the sentence imposed for the felonious assault.

The jury trial started last Monday and took all of last week with the exception of Thursday morning when Judge Kimbler heard his criminal "call day" docket. The jury deliberated Friday afternoon and Monday morning. During the deliberations they had questions which indicated that they were struggling with whether or not Mr. Stage's actions inflicted "serious physical harm" or "physical harm" on the victim.

Jury Returns Not Guilty Verdict on One Hell's Angel, Still Out on the Other

Late Friday afternoon, March 18, 2011, a Medina County jury returned three not guilty verdicts in the case of State of Ohio v. Justin M. Seliskar. The jury, which got the case early Friday afternoon, is still deliberating regarding the case against Mr. Seliskar's co-defendant, Mr. Scott Stage.

Judge Kimbler instructed the jury on the original charge of Complicity to Commit Felonious Assault, a second degree felony, and on the two lesser included offenses of Complicity to Commit Attempted Assault and Complicity to Commit Assault. Those charges are a third degree felony and a first degree misdemeanor.

Following the announcement of the verdict, Judge Kimbler released Mr. Seliskar on his own recognizance since he still has a felony charge pending. That charge is for Having a Weapon Under a Disability. The two charges were severed for purposes of trial. That charge will be heard at a later date.

Jury Finds Wadsworth Woman Guilty of Drug Possession

A jury returned a guilty verdict late Wednesday afternoon in Judge Kimbler's courtroom in a drug possession case. The defendant, Toni Amodio, 29, of Main Street in Wadsworth, Ohio, will be sentenced on March 17, 2011 following a pre-sentence investigation. Ms. Amodio will remain out of bond pending her sentencing. Besides ordering a pre-sentence investigation, Judge Kimbler added the condition that she provide weekly drug screens starting the week of January 31, 2011.

The jury trial started on Tuesday, January 25, 2011. The State called four witnesses and Ms. Amodio called one witness. She also testified in her own defense. The drug possession case arose out of the execution of a search warrant on July 22, 2010 by agents of the Med-Way Drug Task Force. This is Ms. Amodio's second conviction for a drug offense. She was earlier found guilty of Trafficking in Heroin in the Summit County Common Pleas Court.

Online Edition of Ask the Judge: How Long Have There Been Jury Trials?

On this edition of the online version of Ask the Judge, Reporter Kate Feeks asks Judge James L. Kimbler this question: How long have there been jury trials? Click on the link below to hear Kate's question and the judge's answer:

Judge Kimbler Jury Trial Ends in Conviction for Drug Trafficking

After a two day jury trial in Judge Kimbler's courtroom, a jury returned two verdicts of guilty in the case of State v. Kevin M. Foy. Mr. Foy, a resident of Essex Drive in Strongsville, was charged with two counts of Complicity to Commit Drug Trafficking, each charge being a fifth degree felony. Each charge involved the sale of cocaine.

Mr. Foy was charged with aiding and abetting his brother in drug trafficking. Both drug transactions took place in Brunswick. One transaction took place on April 15, 2010 and the other transaction took place on April 20, 2010. Both times drugs were sold to an confidential informant who was working for the Medway Drug Agency. Medway operates in both Wayne and Medina counties.

Following the announcement of the verdicts, Judge Kimbler ordered a pre-sentence investigation and will impose sentence on January 14, 2011. Judge Kimbler continued Mr. Foy's bond until January 14.

Jury Finds Medina Man Guilty of Drug Trafficking

On November 10, 2010, a jury in Judge Kimbler's courtroom returned a guilty verdict against Andrew R. Schmieder of Carsten Road, Medina, Ohio on three counts of Trafficking in Drugs. The drug involved in all three charges was Oxycodone. One count charged Mr. Schmieder with a fourth degree felony and the other two counts charged him with two third degree felonies.

Following the verdict, Judge Marvin Shapiro revoked Mr. Schmieder's bond and remanded him back to the Medina County Jail pending sentencing. Judge Shapiro ordered a pre-sentence investigation and will impose sentence on December 6, 2010. Judge Shapiro was assigned to hear the case by the Ohio Supreme Court since Judge Kimbler was out on a medical leave recovering from surgery.

Jury Splits Verdict in Criminal Case

A criminal jury came back with a split verdict in the case of State of Ohio v. Kyle R. Robison. Mr. Robison, a Hinckley Township resident, was indicted for two crimes. The first count of the indictment was for Assault on a Police Officer, a fourth degree felony, and the second count was for Escape, a fifth degree felony. The jury found him not guilty of the Assault charge but guilty of the Escape charge.

The trial started on November 15, 2010 and concluded on November 16, 2010. The trial was conducted by Judge Thomas J. Pokorny. Judge Pokorny presided over the trial because Judge Kimbler was out on a medical leave due to surgery.

Judge Pokorny ordered a pre-sentence investigation and set sentencing for December 22, 2010. Judge Pokorny also continued Mr. Robison's bond.

Criminal Jury Trial Continuances Filed 10.11.2010-10.25.2010

All jury trials start at 9:00 am unless otherwise noted.

State of Ohio v. Luke D. Rufener, Case No. 10CR0176, new date is November 29, 2010

State of Ohio v. Michelle Foglesong, Case No. 10CR0316, new date is December 7, 2010

State of Ohio v. Kajuana K. Myers, Case No. 10CR0301, new date is November 16, 2010

State of Ohio v. Kevin My Foy, Case No. 10CR0224, new date is November 29, 2010

State of Ohio v. Jeffery A. Starcheski, Case No. 10CR0198, new date is December 6, 2010

State of Ohio v. David L. Resovky, Case No. 10CR0399, new date is November 30, 2010

State of Ohio v. Jessica L. Graham, Case No. 10CR0330, new date is November 19, 2010

State of Ohio v. Virgil T. Smith, III, Case No. 10CR0345, new date is December 27, 2010

State of Ohio v. Todd W. Anshutz, Case No. 10CR0279, new date is December 6, 2010

State of Ohio v. Michael A. Hilson, Case No. 10CR0386, new date is December 14, 2010

State of Ohio v. Toni J. Amodio, Case No. 10CR0387, new date is December 6, 2010

State of Ohio v. Jacob White, Case No. 10CR0391, new date is December 6, 2010

State of Ohio v. Dustin C. Niemann, Case No. 10CR0225, new date is November 29, 2010

State of Ohio v. Jessica Allen, Case No. 09CR0491, new date is November 15, 2010

State of Ohio v. Tonya D. Faulkner, Case No. 10CR0119, new date is December 7, 2010

State of Ohio v. Angel M. Perry, Case No. 10CR0118, new date is December 13, 2010

State of Ohio v. Daniel S. Watson, Case No. 10CR0222, new date is December 14, 2010

State of Ohio v. Brian McKee, Case No. 10CR0298, new date is November 14, 2010

State of Ohio v. Thomas M. O'Connor, Case No. 10CR0278, new date is December 12, 2010

Second Jury Rejects Entrapment Defense

A jury in Judge Kimbler's courtroom today, October 20, 2010, returned a guilty verdict on two counts of Drug Trafficking, both fifth degree felonies, in the case of State of Ohio v. Michael A. Porach, 33, of Manitoulin Pike in Brunswick, Ohio. Mr. Porach had argued to the jury that he was entrapped into committing the two drug trafficking charges. The jury, by returning guilty verdicts, rejected the entrapment defense.

The jury trial, which started on Monday, involved the same confidential informant who testified in another trial in Judge Kimbler's courtroom earlier this year. In both cases the defendants argued that they were entrapped into committing the trafficking offenses. In each case the confidential informant was vigorously cross-examined by defense counsel. In each case, though, there was also corroborating evidence such as audio recordings of the alleged drug transactions. Although he has been a judge for almost 25 years, this is the first year in which Judge Kimbler has given a jury instruction on entrapment.

Following the reading of the verdicts, Judge Kimbler ordered a pre-sentence investigation and continued Mr. Porach's bond. Sentence will be imposed on December 16, 2010 at 8:30 am.

State Must Prove That Presence of Alternate Juror During Deliberations Did Not Prejudice Defendant

When Defendant Enters Objection, Seeks New Trial

State v. Downour, Slip Opinion No. 2010-Ohio-4503.
Lucas App. No. L-08-1029, 182 Ohio App.3d 12, 2009-Ohio-1812. Judgment of the court of appeals reversed, and cause remanded to the trial court.
Pfeifer, Lundberg Stratton, O'Connor, Lanzinger, and Cupp, JJ., concur.
O'Donnell, J., concurs in judgment only.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-4503.pdf

(Sept. 29, 2010) The Supreme Court of Ohio ruled 6-0 today that, when a trial court permits an alternate juror to be present during deliberations by seated jury members over the objection of the defendant, the jury returns a verdict adverse to the defendant, and the defendant moves for a new trial based on the presence of the alternate juror, the state bears the burden of proving that the presence of the alternate juror during deliberations did not result in prejudice to the defendant.

Applying that analysis to a Lucas County case, the Court reversed a decision of the 6th District Court of Appeals and ordered that a defendant found guilty of DUI receive a new trial based on the state’s failure to show that the presence of an alternate juror during the seated jurors’ deliberations was not prejudicial to the defendant. The decision was authored by Justice Paul E. Pfeifer.

James Downour of Toledo was charged with a misdemeanor count of driving under the influence of alcohol (DUI). His case was tried to a jury in the Oregon Municipal Court. In its instructions to the jury, the court directed an alternate juror to accompany the seated jurors to the jury room and be present during their deliberations. Downour’s attorney entered an immediate objection to the instruction allowing the alternate to be present in the jury room, but that objection was overruled. With the alternate present, the jury deliberated and returned a guilty verdict. Downour moved for a new trial on the basis that the presence of the alternate juror during deliberations was contrary to law and the state’s rules of criminal procedure. The trial judge denied the motion for a new trial.

Downour appealed. On review, the 6th District Court of Appeals affirmed the judgment of the trial court, finding that although the trial court erred in allowing the alternate to be present during the jury’s deliberations, the error was harmless. Downour sought and was granted Supreme Court review of the 6th District’s ruling.

In today’s decision, Justice Pfeifer wrote: “This court has consistently stated that allowing alternate jurors to be present during jury deliberations is error. In State v. Murphy (2001) … we stated that ‘it is generally regarded as erroneous to permit alternates to sit in on jury deliberations.’ In State v. Jackson (2001) … we stated that ‘[t]he trial court clearly erred … in allowing the alternate jurors to remain present during deliberations.’ In Murphy and Jackson, the defendants did not object to the presence of the alternate juror, and this court analyzed the error under a plain-error standard that does not presume prejudice.”

“In (State v.) Gross (2002), the defendant objected to the presence of the alternate jurors during jury deliberations. … We stated that because the defendant ‘objected to the presence of the alternates in jury deliberations, the burden shifted to the state to demonstrate an absence of prejudice.’ … We also stated that ‘reversible error occurs where, over objection, an alternate juror participates in jury deliberations resulting in an outcome adverse to a defendant and either (1) the state has not shown the error to be harmless, or (2) the trial court has not cured the error.’ … Because the first sentence in Gross refers to an alternate juror's ‘presence’ during jury deliberations and the second sentence refers to an alternate juror’s ‘participation,’ we now clarify that it is the presence of the alternate jurors that shifts the burden to the state to show that any error is harmless. As we discussed in Gross, ‘[T]he United States Supreme Court has explained that “[i]n theory, the presence of alternate jurors during jury deliberations might prejudice a defendant in two different ways: either because the alternates actually participated in the deliberations, verbally or through ‘body language’; or because the alternate’s presence exerted a ‘chilling’ effect on the regular jurors.’”

“We conclude that the trial court erred in allowing an alternate juror to be present during jury deliberations. We also conclude that because Downour ‘objected to the presence of the alternates in jury deliberations, the burden shifted to the state to demonstrate an absence of prejudice.’ … Nothing in the record indicates that the state established the absence of prejudice. We conclude, therefore, that the court of appeals erred when it affirmed the decision of the trial court. Because the state has the burden to show that the presence of an alternate juror in the room during jury deliberations has not prejudiced a defendant, we reverse the judgment of the court of appeals, and we remand for a new trial.”

Justice Pfeifer’s opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor, Judith Ann Lanzinger and Robert R. Cupp. Justice Terrence O’Donnell concurred in judgment only. Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.

Contacts
Dan Nathan, 419.241.6168, for James Downour.

Tim A. Dugan, 567.249.6427, for the State of Ohio and the City of Oregon.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."

Jury Convicts Litchfield Man of Felonious Assault

A jury in Judge Collier's courtroom convicted Aaron A. Gatt, 21, of Vandermark Road in Litchfield Township of one count of Felonious Assault, a second degree felony. The indictment alleged that Mr. Gatt committed the assault on September 19, 2009. The jury returned its verdict on September 22, 2010, following a two day jury trial.

Although Mr. Gatt argued that he only acted in self-defense and that he was only trying to defend his father's property from a trespasser, the jury rejected both affirmative defenses. On Monday, September 27, 2010, Judge Collier sentenced Mr. Gatt to five years in prison.

Jury Rejects Entrapment Defense, Returns Guilty Verdict

A jury in Judge Kimbler's courtroom returned a guilty verdict late Tuesday afternoon in the case of State of Ohio v. Brian P. Medvick. Mr. Medvick was indicted for one count of Drug Trafficking, a fourth degree felony. Mr. Medvick admitted to selling two pills that contained an illegal drug, but claimed that the confidential informant used by the Medway Drug Enforcement Agency had entrapped him into committing the crime.

When a defendant raises the defense of entrapment, he or she has the burden of proving by a preponderance of the evidence that the entrapment took place. Because the burden of proof is on the defense and because a person raising that defense has to admit that he or she committed the offense, it is not often used. Indeed, in over 24 years on the bench, this was the first trial that Judge Kimbler presided over where the defense was raised.

Mr. Medvick was allowed to remain on bond after the jury returned its verdict. A pre-sentence investigation was ordered and sentence will be imposed on November 5, 2010 at 8:30 am.

Mr. Medvick now resides in Strongsville, Ohio, but at the time of offense lived in Brunswick, Ohio. Mr. Medvick is one of approximately 43 defendants who sold drugs to the confidential informant who testified for the State.

Akron Man Sent to Prison for Attempted Burglary

William R. Carson, Jr.,53, who is from Akron, but is presently homeless, was sent to prison for one year by Judge James L. Kimbler on Thursday, August 26. In July, a jury convicted Mr. Carson of one count of Attempted Burglary, a fifth degree felony, and two counts of Criminal Trespass, a fourth degree misdemeanor.

Judge Kimbler also sentenced Mr. Carson to thirty days in jail for each criminal trespass, but under Ohio law, a misdemeanor sentence has to be served concurrently with a prison sentence. Judge Kimbler also gave him credit for 129 days he served in the county jail prior to the imposition of sentence.

Although the jury convicted Mr. Carson of three counts, it found him not guilty of one burglary count, a count of possessing criminal tools, and found him not guilty of two counts of breaking and entering, but did find him guilty of the lesser included offenses of criminal trespass. Mr. Carson is expected to appeal his conviction.

Wadsworth Man Found Not Guilty of Domestic Violence

James P. Skala of Mills Street in Wadsworth, Ohio, was found not guilty of Domestic Violence, a third degree felony, by a jury in Judge Collier's court last week. Mr. Skala was charged with a third degree felony because the indictment alleged that he had two prior convictions for Domestic Violence.

Jury Returns Not Guilty Verdict for Burbank Woman

A Medina County jury returned a not guilty verdict in Judge Collier's court last Wednesday. Paula C. Finowski, of South Street in Burbank, had been charged with one count of Drug Possession, a fifth degree felony. The jury trial started on July 19 and the verdict was returned on July 21.