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Case CaptionCase No.Topics and IssuesAuthorCitation / CountyDecidedPostedWebCite
State v. Finnell C-140547, C-140548EVIDENCE/WITNESS/TRIAL - OTHER-ACTS EVIDENCE - KIDNAPPING - THEFT/RECEIVING STOLEN PROPERTY - WITNESS INTIMIDATION - WEAPONS - PROCEDURE/RULES - R.C. 2941.25/ALLIED OFFENSES: The defendant failed to demonstrate plain error in the admission of a witness's testimony generally referencing the defendant's "dangerous past" that she had learned about from others, where the testimony was offered to show why she assisted the defendant in carrying out the crimes, and was not offered to show that the defendant had a dangerous past or conforming conduct. The defendant's convictions for aggravated burglary with a firearm specification, kidnapping, having weapons under a disability, intimidation of a witness, and receiving stolen property were supported by sufficient evidence and were not against the manifest weight of the evidence: the state's testimony from a cooperating witness was corroborated by other evidence; and the defendant's proximity to a stolen firearm at the time of his arrest and his statements referencing that firearm were circumstantial evidence of his constructive possession of the firearm. The trial court erred by ruling on the defendant's motion for a new trial where the matter had been assigned to a different judge, because the judge who had presided over the trial had disqualified himself from the case as to the motion. The defendant's convictions for having weapons under a disability and receiving stolen property were separately punishable, even though they arose from the defendant's possession of the same firearm, because they were not of a similar import.CunninghamHamilton 11/25/2015 11/25/2015 2015-Ohio-4842
State v. Sellers C-140655EVIDENCE - HOMICIDE - OTHER-ACTS EVIDENCE - WAIVER - JAIL-TIME CREDIT: In an aggravated-murder case, the trial court erred in admitting under Evid.R. 404(B) "other acts" evidence in the form of evidence of a separate homicide where the facts of the other homicide were not sufficiently similar to those in the present case to be probative of identity; however, given the strength of the remaining evidence the error was harmless error. The trial court's judgment convicting defendant of aggravated murder was not against the weight or sufficiency of the evidence where the defendant's DNA was found on vaginal swabs taken from the victim, an assistant coroner testified that the victim had been raped and killed in the location where her body had been discovered, and the defendant's DNA was found on a cigarette butt recovered from the scene of the crime. Defendant waived any error in the trial court's overruling of his motion to suppress statements he made to police where defense counsel indicated on the record at trial that the defense was not seeking to suppress statements in which the defendant denied involvement in the crime and those statements were the ones defendant argued on appeal should have been suppressed. Defendant was not entitled to jail-time credit for time he served for a separate homicide, because jail-time credit applied only to the time that defendant was confined arising out of the aggravated murder for which defendant was convicted and sentenced in this case.StautbergHamilton 11/25/2015 11/25/2015 2015-Ohio-4843
Duke Energy Ohio, Inc. v. Cincinnati C-140763MUNICIPAL: Because Cincinnati Municipal Code 722-4(c) deals with determining whether a utility company is responsible for associated costs when utilities in the right-of-way must be relocated, and R.C. 4939.04(A)(1) delineates the manner in which a municipal corporation must proceed when providing access to its public ways, the two provisions are not in conflict. The trial court did not err in declaring that the city of Cincinnati's relocation order issued to Duke Energy Ohio, Inc., pursuant to Cincinnati Municipal Code Chapter 722, was not a valid exercise of the city's home-rule authority: the order requiring Duke to relocate its utilities at its own expense to accommodate the city's streetcar project did not bear a substantial relationship to the public's health, safety, morals, or general welfare; therefore, it was not issued in furtherance of the city's local police power. A municipality cannot require a public utility to relocate facilities at the utility's expense to accommodate the proprietary utility operations of the municipality. Because the construction and operation of a governmentally-owned transit system, including a streetcar system, is a proprietary function, the trial court did not err in declaring that the city of Cincinnati and not Duke Energy was responsible for the cost of relocating Duke Energy's utilities to accommodate the city's streetcar project.HendonHamilton 11/25/2015 11/25/2015 2015-Ohio-4844
State v. Sullivan C-150091, C-150098EVIDENCE - VIOLATION OF PROTECTION ORDER - SENTENCING: Markings on the judgment entry relating to treatment and sentence-reduction programs communicated defendant's eligibility for jail programs to the sheriff and did not constitute part of his sentence; therefore, they were not required to be announced in open court in defendant's presence. The sentencing entry is modified to remove the marking indicating that the sentence was consecutive; because defendant was only sentenced on one offense there was nothing to which the sentence could have been made consecutive. Defendant's conviction for violation of a protective order was based on sufficient evidence and not against the manifest weight of the evidence where the record demonstrates that defendant telephoned the victim and identified himself.DeWineHamilton 11/25/2015 11/25/2015 2015-Ohio-4845
State v. Stowers C-150095RES JUDICATA/ESTOPPEL-SEX OFFENSES: The trial court erred in granting defendant's motion to dismiss his indictment for failing to provide notice of an address change and in ordering that defendant's name be removed from the sex-offender registry, on the basis that defendant had finished serving his sentence for attempted rape prior to July 1, 1997, the effective date of Megan's Law, and therefore, the registration provisions could not be applied to him: the issue whether defendant was subject to sex-offender registration was res judicata, where defendant had raised that issue in a 2006 motion to set aside the order requiring him to register as a sex offender, that issue had been decided against him, and he had not appealed that determination.CunninghamHamilton 11/25/2015 11/25/2015 2015-Ohio-4846
In re D.L. C-140711THEFT: The trial court erred in adjudicating the juvenile delinquent for theft as a fourth-degree felony where the state failed to present sufficient evidence showing that the value of the property stolen was between $7,500 and $150,000. Where the state presented evidence showing that the value of the property stolen was between $1,000 and $7,500, the trial court should have adjudicated the juvenile delinquent for theft as a fifth-degree felony.MockHamilton 11/20/2015 11/20/2015 2015-Ohio-4747
Great Water Capital Partners, L.L.C. v. Down-Lite Internatl, Inc. 150015, C-150023CONTRACTS: The trial court did not err when it dismissed plaintiff's claim for breach of contract, because defendant's duty of good faith and fair dealing did not stand alone from the contract, and it was not a breach of the duty for the defendant to exercise the discretion for which it had bargained. The trial court did not abuse its discretion when it denied plaintiff's motion to amend the complaint to included claims for breach of contract based on prevention of performance and excuse of condition where amendment would have been futile, because the conduct of plaintiff that allegedly prevented performance under the contract was permissible under the terms of the contract. The trial court did not abuse its discretion in denying plaintiff's motion to amend the complaint include an unjust-enrichment claim, because amendment would have been futile where the subject matter of the unjust-enrichment claim was covered by the agreement between the parties. The trial court did not err when it granted summary judgment on plaintiff's breach-of-warranty claim, because plaintiff did not present any evidence of damages suffered as a result of defendant's alleged misrepresentations. Summary judgment was properly granted in favor of defendant on plaintiff's fraudulent-inducement claim, because the alleged inducement to enter the contract was within the scope of the integrated agreement.DeWineHamilton 11/18/2015 11/24/2015 2015-Ohio-4877
State v. Rosemond C-150199AUTOS/CRIMINAL - INDICTMENT/COMPLAINT: The trial court erred in granting the state's motion to amend the complaint from a violation of R.C. 4511.19(A)(1)(b) to a violation of R.C. 4511.19(A)(1)(h), because the amendment changed the penalty for the offense, which constituted a change in the name or identity of the crime charged.Per CuriamHamilton 11/18/2015 11/24/2015 2015-Ohio-4878
State v. Neal C-140667ID/PHOTOS - EVIDENCE - MURDER - ASSAULT - PROSECUTOR - SENTENCING: The trial court did not err in denying defendant's motion to suppress the victim's in-court identification where the totality of the circumstances demonstrated that the victim's in-court identification was reliable: the victim testified that his in-court identification was based on his own observations and memory of the shooting, the identification was made under oath and subject to cross-examination, and the victim testified that he had seen defendant two times the day of the shooting, had been within inches of his face, his opportunity to observe the defendant had not been fleeting, and he was confident that defendant was the shooter. The trial court did not err in overruling defendant's motion to suppress an eyewitness's identification of defendant as the person who had shot at two of her friends, seriously wounding one and killing the other, because the use of a single-photograph identification procedure by police did not give rise to a likelihood of misidentification where the state presented evidence that the eyewitness had known the defendant for several months prior to the offenses, they had exchanged text messages and phone calls and they had had an intimate relationship. The trial court did not err in overruling defendant's motion to suppress an eyewitness's identification of defendant from a photo lineup where there was no evidence that the police had violated the photo-lineup procedures in R.C. 2933.83, and therefore, the court did not need to reach the reliability of the eyewitness's identification. Where the assistant prosecuting attorney improperly read some of a state's eyewitness's statements to her during direct examination, which was more indicative of an attempt to impeach the witness than an attempt to refresh her recollection, the limited instances of improper questioning did not rise to the level of plain error where the case was tried to the court and where the witness's statements were merely cumulative to testimony that had been provided by other state's witnesses. Defendant's convictions for murder, felonious assault, having a weapon under a disability and the accompanying firearm specifications, were supported by sufficient evidence and were not against the manifest weight of the evidence where the victim and an eyewitness testified that defendant had made a threatening statement to one of the victims and had then followed him to a car, pulled out a pistol and fired multiple gun shots at the two unarmed victims, striking one victim in the head and killing him, and seriously injuring the other victim; witnesses identified defendant as the person they had seen fleeing with the gun immediately after the shooting; video footage of the murder corroborated witness accounts of the events; and defendant's DNA was found on the weapon that had been used in the shootings. Defendant's sentence of 29 years to life in prison was not contrary to law: the trial court expressly considered the purposes and principles of sentencing under R.C. 2929.11 and the seriousness and recidivism factors under R.C. 2929.12, and it made the necessary findings under R.C. 2929.14(C)(4) to impose consecutive prison terms both orally and on the sentencing entry and the record supported those findings.FischerHamilton 11/13/2015 11/13/2015 2015-Ohio-4705
In re C.F. C-150454, C-150469CHILDREN - CUSTODY - APPELLATE REVIEW - STANDING: Where appellant father in a permanent custody case failed to file an appellate brief, his appeal is dismissed pursuant to App.R. 18(C). Appellant mother in a permanent custody case did not have standing to appeal the portion of the juvenile court's judgment denying paternal grandmother's petition for custody where paternal grandmother did not appeal from the judgment. The juvenile court's grant of permanent custody to the Hamilton County Department of Job and Family Services was supported by sufficient evidence and was not against the manifest weight of the evidence where there was clear and convincing evidence to support the findings that the grant of permanent custody was in the best interest of the children and that the children could not be placed with either parent within a reasonable time or should not be placed with either parent.MockHamilton 11/13/2015 11/13/2015 2015-Ohio-4706