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Wednesday, November 6, 2013

Douglas J. Wine v. State of Ohio, Case no. 2012-1611
Third District Court of Appeals (Auglaize County)

State Auto. Mutual Ins. Co. v. Peggy Spaeth, Case no. 2012-1866
Eighth District Court of Appeals (Cuyahoga County)

ProgressOhio.org et al. v. JobsOhio et al., Case no. 2012-1272
Tenth District Court of Appeals (Franklin County)

Lucious Taylor v. State of Ohio, Case no. 2012-2136
Ninth District Court of Appeals (Summit County)


Does a Criminal Defendant Have the Right to Prevent Jury Instructions On Lesser Offenses?

Douglas J. Wine v. State of Ohio, Case no. 2012-1611
Third District Court of Appeals (Auglaize County)

ISSUE: As part of trial strategy, does a criminal defendant have a right to present an all-or-nothing defense and, as part of that defense, prevent the court from instructing the jury on lesser-included offenses?

BACKGROUND:
In fall 2009, Sandra and Cecil Davis babysat their three grandchildren while their daughter and son-in-law, Clarinda and Douglas Wine, went on vacation. On October 12, the Wines returned home from vacation. That night, Ms. Davis agreed to tell a story to her grandson in his room, and she fell asleep in his bed. She testified that she awoke yelling sometime after midnight. She said that when she awoke, her son-in-law was engaged in a nonconsensual sex act.

In February 2011, Mr. Wine was indicted for one count of rape, a first-degree felony. Wine’s defense during his jury trial was one of complete denial or actual innocence. After all the evidence was presented, the trial courtinstructed the jury on the offense of rape as well as the lesser-included offenses of sexual battery and gross sexual imposition. Neither defense counsel nor the state requested jury instructions on lesser offenses. And Wine’s attorney objected to the court providing instructions to the jury on the lesser offenses.

The jury found Wine not guilty of rape, not guilty of sexual battery, but guilty of gross sexual imposition, and the court sentenced him to 15 months in prison. Wine appealed to the Third District Court of Appeals.

The appeals court found that the state did not prove that there was “force” or “threat of force,” which was a needed element in the act of gross sexual imposition. However, the Third District did determine that the evidence was sufficient for a conviction on sexual imposition, a lesser offense. It returned the case to the trial court with the instruction to enter a finding of guilt on sexual imposition.

Wine filed a motion to reconsider with the appellate court, which was denied. Wine appealed to the Supreme Court. Meanwhile, the trial court found Wine guilty of sexual imposition and sentenced him to time served.

While some Ohio cases have held that a trial court must include instructions to the jury about lesser-included offenses if there is sufficient evidence to acquit of the charged offense, Wine’s attorneys argue that many appeals courts have relied on the Ohio Supreme Court’s decision in State v. Clayton (1980) when ruling on this issue. In Clayton, they contend that the court held that a defendant maintains the right to refuse such jury instructions regardless of the trial court’s duty.

They assert that the appellate courts have said trial counsel could strategically seek an outright acquittal rather than risk a conviction of a lesser-included offense. This type of defense or strategy, they say, is known as “all or nothing,” meaning the defendant wants a conviction or acquittal strictly on the charged offense.

While the U.S. Supreme Court has held that jury instructions on lesser-included offenses are constitutionally required in capital cases under certain circumstances, the court has not expressly extended the federal due process concerns into cases that are non-capital, leaving that issue to each state to determine, Wine’s attorneys argue.

Wine’s attorneys find it “disturbing” that the evidence of gross sexual imposition was not sufficient, as determined by the Third District. They contend that this finding makes Wine’s objection to that jury instruction even more valid.

They argue that had Wine been given the right to refuse lesser-included offense instructions, then the jury would have acquitted or convicted on the rape charge. If he had been convicted of rape, they assert that the decision would also have been reversed for insufficient evidence, based on the Third District’s reversal for not proving the “force” element of the crime. Ultimately, they assert, Wine was convicted of a lesser offense (sexual imposition), which was never considered by the jury.

“Unfortunately, there is no ‘bright-line’ test for the trial court to utilize in determining whether lesser-included offenses are appropriate,” they contend. “There is a plethora of appellate cases which have shown that there is a degree of subjectiveness to these types of decisions made by the trial court. Criminal Rule 30 supports the position that any and all parties have a say when it comes to jury instructions, not just the trial court.”

They conclude that the Supreme Court has an opportunity to clarify whether due process and the right to present a defense include the right of a defendant to determine what is in his own best interest and to be able to prevent a trial court from providing instructions to a jury on lesser-included offenses.

Attorneys for the state counter that trial courts have the sole discretion to give jury instructions, and a defendant does not have the right to obstruct a trial court from instructing a jury on legitimate and proper lesser offenses.

It is “mere speculation” that Wine would have been acquitted if the instructions on the lesser-included offenses had not been given, they assert. In fact, they contend that the opposite may be true. They note that in Spaziano v. Florida, (1984), the U.S. Supreme Court held that instructions on lesser-included offenses in capital cases are needed to ensure a fair trial and that failure to give a lesser-included instruction increase the risk that a jury will convict, not because they are persuaded by the evidence but because they don’t want to set the individual free.

They ask the court to reject the argument that Clayton gives a criminal defendant veto power over a court’s determination to provide jury instructions on lesser-included offenses. Clayton, they assert, held that a criminal defendant may waive – that is, choose not to request – that a court provide jury instructions on lesser offenses, but it did not rule that the defendant may circumvent the power and discretion of the court by rejecting a proper jury instruction.

Amicus briefs (friend of the court) supporting the state’s position have been submitted by Ohio Attorney General Michael DeWine, Franklin County Prosecutor Ron O’Brien, and the Ohio Prosecuting Attorneys Association.

Copies of the amicus briefs and all other filings in the case can be accessed by going to the following link: http://www.supremecourt.ohio.gov/Clerk/ecms/searchbycasenumber.asp and entering the case number, 2012-1611, in the search box.

Contacts
Representing Douglas J. Wine: Lorin Zaner, 419.242.8214

Representing the State of Ohio: Edwin Pierce, 419.739.6785

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Supreme Court to Consider Wrongful Death Insurance Case that Centers on Whether a Person Can Have More than One Domicile

State Auto. Mutual Ins. Co. v. Peggy Spaeth, Case no. 2012-1866
Eighth District Court of Appeals (Cuyahoga County)

ISSUE: Can a person have more than one “domicile” where the person lives and where the person intends to remain and go back to when away temporarily?

BACKGROUND:
Robert Schill, while driving his self-insured vehicle that he owned in Geauga County in 2008, struck and killed bicyclist Miles Colburn. Colburn’s wife, Peggy Spaeth, filed a wrongful death action against Schill and his insurance company, State Auto. Spaeth and Schill each filed a claim under Schill’s parents’ personal umbrella liability policy with the Cincinnati Insurance Company (CIC). CIC denied Schill coverage, which he challenged in Cuyahoga County Common Pleas Court.

After the trial court consolidated the wrongful death and declaratory judgment actions, all parties filed motions for summary judgment on the issue of James Schill’s (Robert’s father) domicile. Robert had sought coverage under the CIC policy claiming he is a resident of James’s household and he has the same legal resident of domicile as James. CIC countered that James can have only one “legal resident of domicile” and it is in Florida. The trial court agreed with CIC and denied Spaeth’s and Robert’s motions for summary judgment.

Spaeth appealed to the Eight District Court of Appeals, which reversed the trial court. CIC appealed to the Supreme Court of Ohio, which agreed to hear the case.

CIC’s attorneys argue that James does not own property in Ohio, he is not employed in Ohio, and that he and his wife moved to Florida 20 years ago. While he travels regularly to Ohio to monitor his business interests, his residence and his “intent” is to always return to Florida.

They point to an 1878 Supreme Court case (Sturgeon v. Korte) as lending guidance to help determine domicile noting that “Ohio has maintained since 1878 that an adult’s presumptive domicile is determined by the individual’s then current subjective intent.” The decision also “noted that an adult person is free to choose and change their domicile at their pleasure.”

On the other hand, they argue, Robert hasn’t been to Florida in more than 20 years and does not share his father’s domicile. “As such, Robert Schill, whose residence and domicile is indisputably in Ohio, is not an ‘insured’ under the umbrella liability insurance policy that CIC issued to James Schill,” they assert.

In arguing that the appeals court erred, CIC’s attorneys cite previous Supreme Court decisions that state that a person can have more than one residence but only one domicile. They also point to a 1964 Supreme Court case that limits an appeals court’s domicile consideration to the facts at trial. In addition, they claim that the appeals court “improperly determined that every individual who is born in the State is ‘presumed’ to have Ohio as their domicile and, if that individual ever intends to return to Ohio, for whatever purposes, that is more determinative than the individual’s actions and intent to reside permanently in another State.”

Spaeth’s attorneys argue that James “flunked retirement” and has always lived in Ohio for up to half or more each month operating his Ohio businesses with no intention of retiring or abandoning his working and living arrangement in Ohio. They also point out that James was living with Robert at the home that is owned jointly by James’s wife and Robert the day the accident occurred.

Spaeth’s attorneys claim that James pays for virtually all the costs associated with the Ohio home, including mortgage payments, insurance costs, real estate taxes, and more. He also lists the Ohio home as the address for tax forms associated with his rubber processing business, his professional and personal contacts remain largely in Ohio, and three of his four children live in Ohio.

Her attorneys also note the absence of the word “Florida” in the policy, in contrast to Ohio-specific language throughout that insures James “as an Ohio named insured living at the Ohio home.” In addition, “a person’s subjective intent that is inconsistent with the intent as shown in the contract language is irrelevant for purposes of determining coverage under a contract.”

Spaeth’s attorneys agree with the court of appeals ruling because James never followed the statutory requirements for avoiding the Ohio domicile presumption for tax purposes and he never abandoned his Ohio domicile under the Supreme Court’s standard established in a 1956 case. Moreover, they claim CIC argued one position in its jurisdictional memorandum and then argued a different position when presenting the case on the merits, so the Supreme Court should dismiss the appeal as improvidently allowed.

Contacts
Representing State Auto (Cincinnati Insurance Co.): Shawn W. Maestle, 216.241.6602

Representing the State of Ohio: Stephen T. Keefe Jr., 216.771.5800

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Does an Advocacy Group Have the Right to File a Lawsuit Challenging the Constitutionality of the JobsOhio Act?

ProgressOhio.org et al. v. JobsOhio et al., Case no. 2012-1272
Tenth District Court of Appeals (Franklin County)

ISSUE: Does ProgressOhio have standing to bring an action challenging JobsOhio?

BACKGROUND:
House Bill 1, enacted by the 129th General Assembly in 2011, authorized Ohio’s governor to create JobsOhio, a non-profit corporation to promote economic development in the state. House Bill 153 amended the JobsOhio statutes later in 2011, and R.C. Chapter 4313, the “Liquor Enterprise Act,” allows the state to transfer certain capital or other assets of the liquor distribution and merchandising operations of the Ohio Division of Liquor Control to JobsOhio.

ProgressOhio, a non-profit advocacy group, challenged the JobsOhio legislation directly to the Ohio Supreme Court, based on a provision in the statute stating that lawsuits related to the act must be filed with the state’s highest court. In 2011, the court dismissed the action for lack of subject-matter jurisdiction because the General Assembly had amended the law to require instead that JobsOhio lawsuits had to be filed in the Franklin County Common Pleas Court. Given that, the Supreme Court ruled that ProgressOhio had a remedy in the lower court.

In August 2011, ProgressOhio filed a lawsuit challenging the JobsOhio legislation on constitutional grounds in the common pleas court. The court granted two motions to dismiss, filed by JobsOhio and by the state’s defendants –Ohio’s governor, treasurer, development director, and director of budget and management. The court ruled that ProgressOhio did not have the right to make its legal claim in a lawsuit. This right is referred to as “standing.”

ProgressOhio asked the Tenth District Court of Appeals to review the trial court’s decision. The appeals court affirmed the trial court. The group appealed to the Supreme Court, and the court agreed to hear the case only on the issue of whether the advocacy organization has standing to bring this action against JobsOhio.

Attorneys for ProgressOhio argue they do have the right to file this suit for several reasons:

ProgressOhio’s attorneys assert that the Supreme Court should reject the appellate court’s decision, clarify its standing doctrine, and implement a standard that facilitates enforcement of the Ohio Constitution’s limits on government conduct.

In their first argument, they contend that the Tenth District’s reliance on the U.S. Constitution in determining that ProgressOhio did not have standing was misplaced. They asssert that the appeals court cited federal precedent, or state precedent that borrowed from federal case law, when it ruled that “(1) ‘a litigant must have a personal stake in the matter he or she wishes to litigate;’ (2) the injury must be ‘palpable’ and ‘to the plaintiff himself or to a class;’ and (3) ‘an injury which is borne by the population in general, and which does not affect the plaintiff in particular, is not sufficient to confer standing.’”

The attorneys argue that Ohio courts are free to interpret the Ohio Constitution without adherence or deference to federal court decisions, and the U.S. Constitution sets “a floor, not a ceiling,” for citizens’ rights. They quote the Ohio Supreme Court’s 1999 decision in State ex rel. Ohio Academy of Trial Lawyers v. Sheward:

In the federal judicial system, … the necessity of showing injury in fact prevails irrespective of whether the complaining party seeks to enforce a private or public right. … However, the federal decisions in this area are not binding upon this court, and we are free to dispense with the requirement for injury where the public interest so demands. Unlike the federal courts, state courts are not bound by constitutional strictures on standing ….

In the current case, they assert that the requirement to show injury is not required because the case is in the public interest.

If the Tenth District’s ruling prevails, they contend that several critical provisions of Ohio’s Constitution will be made ineffective, and Ohioans will lose the right to restrain the government by enforcing those constitutional provisions.

Again citing Sheward, ProgressOhio’s attorneys quote the Ohio Supreme Court, which said “this court has long taken the position that when the issues sought to be litigated are of great importance and interest to the public, they may be resolved in a form of action that involves no rights or obligations peculiar to named parties.” The attorneys conclude that this public interest exception to traditional requirements for establishing standing in a court give them the needed standing to challenge JobsOhio.

They also argue that the advocacy group has common law taxpayer standing to bring this case. They note that common law taxpayer standing focuses on the role of taxpayers to file actions to prevent unconstitutional or otherwise unlawful government spending and/or misuse of property. Ohio precedent is supportive of this view, they assert, although Ohio’s appellate courts are split on the issue. They also note that “a vast majority” of other state supreme courts have ruled that taxpayers have the right to restrain the unlawful use of public funds and property. With taxpayer standing, state taxpayers do not need to show “direct injury” or a “personal stake” to bring an action to stop alleged illegal uses of public funds and property.

If the court rules that ProgressOhio has neither public interest nor taxpayer standing in this case, its attorneys contend that it also has standing under Ohio’s declaratory judgment statute. The attorneys cite case law that says a court may grant declaratory relief so long as it finds the action is within the spirit of the declaratory judgments act, that a real and justiciable controversy exists between the parties, and that speedy relief is necessary to preserve rights. They argue this case meets all of these requirements.

They additionally assert that the act itself, specifically language in R.C. 187.09, gives ProgressOhio standing to bring this action: “[A]t minimum, the state has envision[ed] that the capacity to challenge the JobsOhio arrangement exists. Someone, therefore, must have the standing to bring that challenge. Put another way, it would be an absurd result indeed if R.C. 187.09 were to be construed in a manner so as to strip any Ohioan of standing to challenge the arrangement. Likewise, it would be absurd for the legislature to prescribe the terms of a constitutional challenge that no Ohioan could actually bring. Yet these are precisely the conclusions the [a]ppellate [c]ourt drew in this case.”

Last, they argue that public policy considerations strongly support the courts considering the merits of significant constitutional cases like this one.

On the issue of the Tenth District’s reliance on federal precedent in its decision, attorneys for JobsOhio contend that the Ohio Supreme Court can borrow from federal law on issues of standing whenever it decides that is appropriate. Looking to federal precedent “reflects an open-minded willingness to recognize and adopt the jurisprudential wisdom reflected in the federal case law discussing appropriate limits on the exercise of the judicial power” in a three-branch system of government, they assert.

They also counter ProgressOhio’s interpretation of Sheward. They argue that this case is not rare or extraordinary, it is not a mandamus action with original jurisdiction in the Ohio Supreme Court, and the JobsOhio legislation does not strip courts of jurisdiction – all elements required by Sheward. In mandamus actions on constitutional grounds, they contend that the court has recognized Sheward standing only in the case where a statute involves a broad attack on separation of powers that impacts every litigant in the state or an invasion of every Ohio worker’s individual rights. The JobsOhio act is not an attack on the state government’s separation of powers, they assert, nor an intrusion on the judicial branch, so Sheward does not give ProgressOhio standing in this case.

Attorneys for JobsOhio go further, making a case that the Supreme Court should instead overrule Sheward:

[D]oing so would reflect this [c]ourt’s recognition that the two other branches of government in Ohio also have a duty to obey and enforce the Ohio Constitution, a duty that they take seriously. Overruling Sheward would limit the [c]ourt’s intrusion into its two coordinate branches to those cases in which a party or parties have suffered a concrete and particularized injury that is amenable to judicial redress.

JobsOhio’s attorneys also contend that ProgressOhio cannot now argue that it has common law taxpayer standing because it waived that argument by not raising it at trial court or in its appeal to the Tenth District. The group further has not established the necessary requirements to claim taxpayer standing.

The attorneys assert that R.C. 187.09 does not provide a right to sue, as the other side claims, but rather only identifies where and when a challenge to the JobsOhio legislation can be brought. The statute includes no language directed in any way at standing, they contend. The assertion that if the statute does not confer standing to ProgressOhio then no one has standing to sue does not hold weight, JobsOhio’s attorneys argue, because anyone who experiences a concrete and personalized injury still has standing to file a claim.

Again, they oppose any argument for standing based on the declaratory judgment statute because that claim was not made in the lower courts and it cannot be raised for the first time now. Even if the court were to consider this proposition, JobsOhio’s attorneys state that the law only provides a way for those who have suffered an injury to pursue relief, but it does not provide standing in this case. 

Last, they argue that public policy considerations are better served when the Ohio Supreme Court follows settled precedent and considers proper limits on its judicial power.

They conclude that the legal framework proposed by ProgressOhio would empower any Ohio citizen with the right to file a complaint alleging that a new statute violates the Ohio Constitution, which would create substantial delay in the legislative process.

On behalf of the state appellees, including Governor Kasich, the Attorney General’s office makes several similar arguments to those made by JobsOhio’s attorneys. They also assert that the Ohio Constitution gives common pleas courts jurisdiction over “justiciable matters.” If a party lacks standing in the court, they argue, the matter is not justiciable, and, without showing direct or concrete injury, a party cannot be granted standing in a common pleas court.

They note that Article IV, Section 4(B) of the Ohio Constitution governs cases that start in common pleas courts and is distinct from Article IV, Section 2, which grants the Supreme Court original jurisdiction in cases seeking extraordinary writs, such as mandamus and prohibition. They argue that the court has explained that Section 4(B) is notsatisfied when there is simply a sharp disagreement between parties – one side must have a recognized legal interest.

They also contend that the Tenth District reached the right result but was mistaken when it rejected the trial court’s ruling that Sheward standing is limited to writ cases. The appeals court focused on the relief sought as the reason for that limit, noting that the Supreme Court does not have original jurisdiction to grant declaratory judgment. They assert: “Cases arising in trial courts are subject to a distinct provision, and therefore fall outside Sheward'sscope. And while original actions seeking declaratory judgments are indeed dismissed in this Court for that reason, appeals of declaratory-judgment cases are dismissed here for lack of standing, applying traditional standing requirements.”

As a result, the attorney general argues, Sheward is not even implicated here, because this case falls under the “justiciable matters” standard of Article IV, Section 4(B), rather than the Supreme Court’s original jurisdiction under Section 2. “That resolves this case without looking to Sheward,” they contend.

Amicus curiae (friend of the court) briefs supporting the ProgressOhio’s position have been submitted by:

The following have filed amicus briefs supporting JobsOhio:

Copies of the amicus briefs and all other filings in the case can be accessed by going to the following link: http://www.supremecourt.ohio.gov/Clerk/ecms/searchbycasenumber.asp and entering the case number, 2012-1272, in the search box.

Contacts
Representing ProgressOhio.org: Maurice Thompson, 614.340.9817

Former Ohio Representative Dennis E. Murray, pro se: 419.624.3126

Ohio Senator Michael J. Skindell, pro se: 216.621.0070

Representing JobsOhio: Aneca Lasley, 614.365.2830

Representing Ohio Governor John R. Kasich et al.: Michael Hendershot, 614.644.0576

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Are Penalties and Offense Levels Tethered When State Statute Is Amended Between Date of Offense and Sentencing?

Lucious Taylor v. State of Ohio, Case no. 2012-2136
Ninth District Court of Appeals (Summit County)

ISSUE: Is a defendant entitled to a decrease in a classification and penalty of an offense when the General Assembly amends the classification and penalty for that offense and the new law takes effect between the time that the defendant committed the offense and the time of his sentencing on that offense?

BACKGROUND:
Between the time Lucious Taylor was indicted for a fifth-degree felony for stealing $550 worth of cologne from Sears and when he was sentenced in 2011, Am. Sub. H.B. 86 went into effect. The new law amended the state statute of theft (R.C. 2913.02(A)(1)) by increasing the threshold minimum amount of the value of stolen property for a fifth-degree felony from $500 to $1,000.

In Summit County Common Pleas Court, Taylor pleaded no contest to the indictment, which was amended to a first-degree misdemeanor on the basis of the new law. The court found Taylor guilty, sentenced him to a suspended 120 days in jail, and placed him on two years of community control. The state appealed to the Ninth District Court of Appeals, which partially reversed the trial court. The Ninth District found that Taylor’s conviction should have remained a fifth-degree felony, but that he was entitled to be sentenced to a first-degree misdemeanor.

The Ninth District certified that a conflict existed between its decision and two rulings from the Fifth District Court of Appeals. The Supreme Court of Ohio determined that a conflict existed and agreed to hear the case.

Taylor’s attorneys argue that he is entitled to a decrease in a classification and penalty of the offense because he meets the criteria as outlined in a section of the new law.

They point out that the amendments in Am. Sub. H.B. 86 apply to defendants who commit an offense on or after the law’s effective date or to a defendant who meets the criteria under R.C. 1.58(B).

That section reads: “If the penalty, forfeiture, or punishment for any offense is reduced by a reenactment or amendment of a statute, the penalty, forfeiture, or punishment, if not already imposed, shall be imposed according to the statute as amended.”

Taylor’s attorneys list many state statutes that impose a penalty for a felony “separate and apart” from the imposed sentence. They also cite five Ohio appeals courts that “are in agreement with Taylor’s position that R.C. 1.58(B) applies to both the sentence and classification of the crime at the time of the sentencing.”

In addition, Taylor’s attorneys claim that a 2012 U.S. Supreme Court case (Dorsey v. United States) bolsters their position, as the court found that new, lower mandatory minimum sentences called for in the federal Fair Sentencing Act “apply to the post-Act sentencing of pre-Act offenders.”

The state’s attorneys argue that R.C. 1.58(B) makes no mention of a criminal defendant receiving the benefit of a lesser or reduced offense; the General Assembly did not make the amendments to the theft statute, R.C. 2913.02(A)(1), retroactive; and that the state statute governing the classification of offenses “provides additional support for the State’s contention that a ‘penalty’ differs from a ‘classification’ of an offense.”

They argue that the state appeals courts are split on whether Am. Sub. H.B. 86 requires a reduction in penalty and a reduction in classification of an offense in this situation.

“The State disagrees with the appellate courts that have concluded that, because H.B. 86 reduces the classification of the offense due to the increase in the threshold value of the stolen property, a defendant who committed the offense prior to the effective date, is therefore entitled to have his offense reclassified as a misdemeanor.”

They conclude: “Taylor was entitled to have the benefit of a misdemeanor penalty, but he was not entitled to have the degree of the offense reduced to a misdemeanor. Therefore, the Ninth District Court of Appeals correctly determined that the trial court erred in reducing the degree of Taylor’s offenses. The State acknowledges, however, that the trial court’s error cannot be remedied in Taylor’s case.”

An amicus curiae (friend of the court) brief supporting the position of Taylor has been submitted by the Ohio Public Defender.

Copies of the amicus briefs and all other filings in the case can be accessed by going to the following link: http://www.supremecourt.ohio.gov/Clerk/ecms/searchbycasenumber.asp and entering the case number, 2012-2136, in the search box.

Contacts
Representing Lucious Taylor: Neil P. Agarwal, 330.554.7700

Representing the State of Ohio: Richard S. Kasay, 330.643.7459

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These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.

Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.