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Case CaptionCase No.Topics and IssuesAuthorCitation / CountyDecidedPostedWebCite
State v. Buck C-160320KIDNAPPING - CONSTITUTIONAL LAW/CRIMINAL -DISCOVERY - DUE PROCESS - SEARCH AND SEIZURE - EVIDENCE/WITNESS/TRIAL - JUDICIAL BIAS - PROSECUTORIAL MISCONDUCT - COUNSEL - CONFLICT OF INTEREST - TATTOOS: The trial court properly denied defendant's motion to suppress evidence seized from his residence under the emergency-aid exception to the warrant requirement where the police reasonably believed, based on specific and articulable facts, that a still-missing and injured kidnapping victim whose life was in jeopardy and the cell phone used by a kidnapper to make ransom calls to the victim's brother were in the residence. The warrantless search of defendant's cell phone was justified by exigent circumstances where a still-missing kidnapping victim's life was in danger and the police reasonably believed that the phone had been used in the kidnapping operation. Defendant's kidnapping conviction was based on sufficient evidence where defendant and his accomplices removed a victim by force from the place where he was found and held him for ransom, defendant was found in possession of a cell phone used to make ransom demands, defendant's voice was recognized by a detective who had monitored multiple ransom calls made by defendant, and defendant's calls from jail demonstrated that he was involved in the crime and aware of the incriminating nature of his cell phone. The jury could have reasonably concluded that defendant made ransom calls to the kidnapping victim's family where the phone was in defendant's pocket and contained selfie photographs and videos of defendant, the required-birthdate password for the prepaid account on the phone was one digit different than defendant's actual birthdate, and defendant's jail calls demonstrated that he knew that the phone was damning evidence against him. Defendant's claim of prosecutorial misconduct based on the use of false testimony fails where defendant failed to demonstrate that a state's witness's statement was false, that the statement was material, or that the prosecutor knew it was false: mere inconsistencies in the testimony of the state's witness did not establish that the prosecutor knowingly used false testimony. An episode where the trial judge confronted defense counsel outside of the courtroom and out of the jury's presence, and the judge expressed impatience and used profanity with defense counsel, did not demonstrate bias or partiality on the judge's part, and defendant failed to establish that he suffered prejudice from not being present for an in-chambers and on-the-record discussion about the confrontation, because defendant implicitly waived his presence for the discussion which was recorded at the request of defense counsel, who was authorized to waive the defendant's presence. Where defendant did not inform the court until the tenth day of a jury trial that he had been represented by his codefendant's counsel nine years earlier, defendant did not testify, the codefendant testified that defendant had nothing to do with the charged offense, and codefendant's counsel had done nothing to try to incriminate defendant, defendant failed to demonstrate that he was prejudiced as a result of the prior representation, and the trial court did not err by failing to conduct a further inquiry into a potential conflict of interest. The trial court did not abuse its discretion by denying defendant's motion for a mistrial for an alleged discovery violation: even if the prosecutor had failed to disclose a second police interview with a state's witness, there was no indication that any such failure was willful, and foreknowledge of the interview would not have benefitted the defense. The trial court did not abuse its discretion in fashioning a remedy for an alleged discovery violation by the state where the state may have failed to disclose a second police interview with a state's witness: the court recessed so that defense counsel could meet with the interviewing detective to discuss the content of the interview and allowed counsel to cross-examine the detective about whether information regarding the interview had been withheld. The trial court's failure to record sidebar conferences did not result in reversible error where the court summarized on the record the content of the conferences and allowed defense counsel the opportunity to clarify or modify the summary, defense counsel did not object to the court's procedure, and defendant failed to supplement the record on appeal pursuant to App.R. 9. In a kidnapping trial where a gun was allegedly used by a kidnapper, the trial court abused its discretion by admitting into evidence photographs of defendant's tattoos depicting a hand on the trigger of a shotgun with smoke coming from its barrel, above the words "by all means," where any probative value that the photographs had was substantially outweighed by the danger of unfair prejudice, because the evidence may have encouraged the jury to draw an improper inference about defendant's familiarity with guns and his willingness to use guns to commit crimes.MyersHamilton 10/20/2017 10/20/2017 2017-Ohio-8242
State v. Barfield C-160768WEAPONS UNDER DISABILITY - EVIDENCE - JUVENILE ADJUDICATION - CRIM.R. 32.1: State v. Hand, 149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448, does not bar the use of a prior juvenile adjudication as an element of a weapons-under-disability charge, because it is the existence of the disability and not its reliability that is at issue. Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980), and its progeny expressly permit something less than a valid criminal conviction to be the underlying disability for a weapons-under-disability offense. The trial court did not err when it denied defendant's post-sentence motion to withdraw his guilty plea to a charge of having weapons while under a disability, because the "disability" element of the offense was properly established by defendant's prior juvenile adjudications.MillerHamilton 10/20/2017 10/20/2017 2017-Ohio-8243
State v. Chapman C-160397-399EXPERT TESTIMONY - OVI: In a prosecution for operating a vehicle while under the influence of alcohol, the trial court did not abuse its discretion in excluding as irrelevant expert testimony regarding defendant's performance on field-sobriety tests from a chiropractor who had only seen defendant three times and had not seen him for over a year prior to the date of the offense. [See CONCURRENCE: The trial court did not abuse its discretion in excluding the testimony where the chiropractor was unaware of defendant's condition at the time of the offense and the testimony was equivocal.] [But see DISSENT: The trial court abused its discretion in excluding the chiropractor's testimony where he was qualified as an expert, he had personally examined and treated defendant, and, as an expert, he could have based his opinion on facts personally perceived by him or admitted into evidence; any questions about how often and how long ago the chiropractor had seen defendant went to the weight of the testimony and not its admissibility.]DetersHamilton 10/13/2017 10/13/2017 2017-Ohio-8181
State v. Acoff C-160867, C-160868CRIMINAL TRESPASS - SEARCH AND SEIZURE - AUTOMOBILE EXCEPTION: The police officer had probable cause to arrest defendant for criminal trespass where defendant was sitting in a car in the parking lot of a business; defendant was parked near a "no loitering" sign; the officer had observed defendant remain in the vehicle for approximately ten minutes without entering the business; and when asked his purpose for being on the premises, defendant told the officer that he was just "hanging out." The warrantless search of the vehicle in which defendant and another individual were sitting was permissible under the automobile exception to the warrant requirement where the occupants were arrested for criminal trespass, the vehicle was located in an area known for drug activity and heroin was found on one of the occupants. The absence of a traffic stop did not prevent the application of the automobile exception to the warrant requirement, because it did not detract from the automobile's inherent mobility or affect the officer's belief that the vehicle contained contraband.MyersHamilton 10/13/2017 10/13/2017 2017-Ohio-8182
State v. Hamilton C-160247, C-160248SEARCH AND SEIZURE - DRUGS - AUTOMOBILES - EVIDENCE/WITNESS/TRIAL - CONTINUANCE - JURIES - VOIR DIRE - RESTRAINTS - HEARSAY - TAMPERING WITH EVIDENCE - ALLIED OFFENSES - R.C. 2941.25 - SENTENCING: The trial court did not err in overruling defendant's motion to suppress evidence recovered during the search of an automobile, because defendant was properly detained where a police officer observed a traffic violation, executed a traffic stop, and detained defendant, who was a passenger in the vehicle. The trial court properly overruled defendant's motion to suppress evidence recovered during the search of an automobile, because he lacked standing to challenge the search where he did not own the vehicle, had not been driving the vehicle, and had voluntarily exited from the vehicle prior to the search. The trial court properly overruled defendant's motion to dismiss based on the failure to preserve evidence that had been requested where the trial court made the factual determination that the requested video recordings had been corrupted by faulty recording equipment and had never existed in a usable form. The trial court did not abuse its discretion in overruling defendant's motion to continue a suppression hearing for the testimony of an absent witness where the trial court determined that the motion to suppress could be overruled on an independent basis not involving the witness's testimony. The trial court did not abuse its discretion in overruling defendant's motion for a continuance where the continuance was sought to secure the testimony of a witness, but the movant could not say what the witness would testify to or if the testimony would be different than testimony already provided by other witnesses. Defendant was not prejudiced where he was not present for the voir dire of a juror who had been approached by a third party who had attempted to influence the juror, because counsel was present to protect his rights. Defendant's temporary restraint during his testimony did not cause the trial to be fundamentally unfair such that a mistrial was warranted where the need for restraint arose abruptly, defendant's restraint was limited to the time required to allow the incident to pass, the jury was instructed not to consider the incident, and the jurors indicated that they would not consider it. The testimony of a police officer who said that a third party had told him that defendant lived in a certain apartment was not hearsay as the testimony was presented for the purpose of explaining why the officer attempted to use defendant's key on a certain apartment door. [But see CONCURRENCE: The testimony was hearsay, but the admission of the testimony was harmless in light of other overwhelming evidence of defendant's guilt and tying defendant to the apartment.] The trial court did not abuse its discretion when it refused to allow defendant to replay during his testimony video evidence that had been played in its entirely during the state's case-in-chief where defense counsel was able to cross-examine during the original playing and defendant was able to testify about the recordings without having them replayed. Defendant was properly convicted of tampering with evidence where he was recorded in telephone calls from jail instructing a third party to get money by flipping the largest item in the apartment bedroom, and when officers searched the apartment they found that the box spring had a hole in the bottom and the cavity was empty. Defendant was properly convicted of trafficking in and possession of heroin where a bag of heroin was found in a diaper bag in a vehicle in which defendant was a passenger, his DNA was found on the bag, and police officers testified that he admitted that the heroin was his. The trial court committed plain error when it convicted defendant of trafficking in and possession of heroin where both charges stemmed from the same bag of heroin, because those offenses were allied offenses of similar import, and the trial court's decision to run the sentences concurrently did not cure the error.MockHamilton 10/11/2017 10/11/2017 2017-Ohio-8140
State v. Ward C-160560SEARCH AND SEIZURE - AUTOMOBILES: The trial court erred in overruling defendant's motion to suppress evidence recovered during a search of his automobile, because the evidence presented at the hearing on the motion failed to establish that the officer's search of defendant's vehicle was permitted under the automobile exception to the warrant requirement where the evidence showed that in a high-drug-activity area the officer saw defendant's car parked near a sidewalk with a person leaning into it and, as the officer approached, the person walked away, defendant then pulled away from the curb without signaling and was stopped by the officer.ZayasHamilton 10/11/2017 10/11/2017 2017-Ohio-8141
Saqr v. Naji C-160850CIVIL PROTECTION ORDER - DOMESTIC VIOLENCE - APPELLATE REVIEW - CIV.R. 65.1 - CIV.R. 53: Appellant husband may assert arguments for the first time on appeal, despite failing to file objections to the magistrate's decision with the trial court as required by Civ.R. 65.1(G), where the magistrate's decision did not inform husband of the necessity of filing objections as required by Civ.R. 53(D)(3)(a)(iii). Husband's claim on appeal that the trial court erred in overruling his motion to terminate the domestic violence civil protection order was moot where the order had expired during the pendency of the appeal. The trial court did not abuse its discretion in failing to grant husband relief from the judgment where he never explicitly requested relief from the judgment in his motion to terminate the domestic violence civil protection order and where he did not produce sufficient evidence to justify relief from judgment.ZayasHamilton 10/11/2017 10/11/2017 2017-Ohio-8142
State v. Wynn C-160782DOMESTIC VIOLENCE - EVIDENCE - CRIM.R. 29: In a prosecution for domestic violence pursuant to R.C. 2919.25(A), which prohibits knowingly causing or attempting to cause physical harm to a family or household member, the trial court properly denied the defendant's Crim.R. 29 motion for a judgment of acquittal following the state's case-in-chief, because when the wife victim was asked by the prosecutor whether she and her defendant husband had been separated on the date of the offense, the wife responded, "No. We were not living together, but we were still together," and the trial court reasonably interpreted the wife's testimony to mean that they had previously resided together at some point during their seven-year marriage. [But see CONCURRENCE: The wife's testimony was insufficient to establish that she and defendant had ever lived together where the wife clearly stated that she and defendant were not living together at the time of the offense and she was never asked if she had ever lived with him; however, because defendant presented a defense and he testified that he and his wife had lived together the evidence was sufficient to sustain defendant's conviction for domestic violence.]MyersHamilton 10/4/2017 10/4/2017 2017-Ohio-8045
State v. Greenway C-160511EVIDENCE - WITNESSES - DRUGS - ALLOCUTION - SENTENCING: In defendant's trial for possessing drug-abuse instruments, the trial court's questioning of the police officer, who responded to the dispatch of an overdose, about the life squad's use of Narcan on defendant did not establish an essential element of the state's case and was not an abuse of discretion. The record did not demonstrate that the trial judge was biased where nothing in the record showed that the trial judge exhibited favoritism toward the state and against the defendant or that the judge did not have an open mind. The failure to submit a properly notarized affidavit into evidence along with the crime laboratory report was harmless error. Evidence showing that the police officer dispatched to the scene for a "non-breather" found the defendant in a basement receiving life-saving procedures with a syringe containing drug residue at the foot of the bed on which defendant was lying was sufficient to support defendant's conviction for possessing drug-abuse instruments. The trial court erred in denying defendant her right of allocution where it failed to address defendant personally and ask her if she wished to make a statement on her own behalf or present any evidence in mitigation, and therefore, defendant's sentence must be reversed and the cause remanded for resentencing.MockHamilton 9/22/2017 9/22/2017 2017-Ohio-7729
Shaffer v. Jones C-160684APPELLATE REVIEW/CIVIL - JURISDICTION - FINAL ORDER - MOTION TO INTERVENE - CIV.R. 24(C): The trial court's denial of a motion to intervene to set aside an order confirming an arbitration award was a final appealable order under R.C. 2505.02(B)(2), because it was entered in a special proceeding and it affected a substantial right when it constituted the sole means available to secure the rights sought by the intervenors. The trial court did not err by denying a motion to intervene to set aside the judgment in an action confirming an arbitration award, because the proposed intervenors did not accompany their motion with a pleading as required by Civ.R. 24(C).CunninghamHamilton 9/22/2017 9/22/2017 2017-Ohio-7730