08/17/2017


Case Caption

Case No.Topics and IssuesAuthorDecided
State v. Gardner 104677Aggravated menacing; R.C. 2903.21(A); obstructing official business; R.C. 2921.31(A); having weapons while under disability; R.C. 2923.13(A)(3); Crim.R. 29(A); sufficiency of the evidence; manifest weight of the evidence; constructive possession; Crim.R. 43(A); R.C. 2947.23; costs. Defendant's convictions for aggravated menacing and obstructing official business were supported by sufficient evidence and were not against the manifest weight of the evidence. State did not present sufficient evidence of defendant's actual or constructive possession of firearm recovered from fire pit in defendants' parents' backyard after defendant was apprehended to support his conviction for having a weapon while under disability. Defendant's contention that trial court erred in ordering him to pay costs that it did not impose at the sentencing hearing was moot.Gallagher 8/17/2017
Cleveland v. Primm 104963Crim.R. 48(A); dismissal without prejudice; motion to suppress; final order. Dismissal of citation for minor misdemeanor drug possession was considered to be without prejudice and deprived appellate court of jurisdiction, despite defendant's assertion that dismissal denied him the opportunity to be heard on a pending motion to suppress evidence that he claimed would be valuable to him, if he prevailed, in federal court action seeking recovery of money seized during a traffic stop.Stewart 8/17/2017
State v. Carson 104998Drug trafficking; R.C. 2925.03(A)(2); firearm specification; R.C. 2941.141; sufficiency of the evidence; dominion and control; constructive possession. The state presented sufficient evidence to support appellant's conviction of the firearm specification under R.C. 2941.141 where the evidence demonstrated appellant was the sole operator of the vehicle, he attempted to flee from the police, and the passenger behind appellant made furtive movements toward an area in the vehicle where the firearm was ultimately located. The state's evidence established appellant had knowledge of and dominion and control over the firearm sufficient to establish constructive possession of the firearm at some point during the commission of the drug trafficking under R.C. 2925.03(A)(2).McCormack 8/17/2017
Barry v. Bay Village Bd. of Zoning Appeals 104999Variance; setback; board of zoning; appeal; standard of review; findings of fact. - Judgment affirmed. In an administrative appeal, the common pleas court considers the whole record, including any new or additional evidence admitted under R.C. 2506.03, and determines whether the administrative order is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence. The common pleas court must not substitute its judgment for that of an administrative board, such as the board of zoning appeals, unless the court finds that there is not a preponderance of reliable, probative, and substantial evidence to support the board's decision. The trial court properly concluded that the BZA's decision to deny homeowner's variance request was supported by substantial, reliable, and probative evidence.Kilbane 8/17/2017
Cordova v. Emergency Professional Servs., Inc. 105061Jury trial; voir dire; challenge for cause; peremptory challenge; abuse of discretion; R.C. 2313.17(B)(9); R.C. 2313.17(D); fair and impartial; follow the law as given by the trial court; prejudice; new trial. In a medical malpractice case, the trial court did not abuse its discretion when it refused to remove a juror - an internal medicine physician - for cause. None of the juror's answers to the voir dire questions disclosed that she could not be fair and impartial or that she could not follow the law as given by the trial court, which would have required her automatic removal for cause under R.C. 2313.17(B)(9). In addition, giving deference to the trial court, we cannot say that there was any unresolved uncertainty about whether the juror could have been entirely unbiased. Therefore, the trial court also did not abuse its discretion in denying the appellants' challenge for cause under R.C. 2313.17(D).Boyle 8/17/2017
Cleveland v. Bryant 105079Aggravated menacing; Cleveland Codified Ordinances 621.06; sufficiency and manifest weight of the evidence; ineffective assistance of counsel. The defendant's aggravated menacing conviction was supported by sufficient evidence and was not against the manifest weight of the evidence. There is no evidence in the record to support defendant's argument that his trial counsel was ineffective for failing to obtain an expert on pellet guns.Boyle 8/17/2017
State v. Gunter 105275Anders brief; appointed counsel; independent review. After independent review pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), this court found no errors in the trial court that were prejudicial to appellant. Appointed counsel's motion to withdraw is granted.Boyle 8/17/2017
B&J Resources, L.L.C. v. 28925 Lorain Inc. 105323Escrow; breach of contract; negligence; economic loss doctrine; indemnity. Court did not err by granting summary judgment on breach of contract claims against title agency because the title agency complied with contractual obligation to use the last available tax duplicate. Negligence claim was barred by economic loss doctrine because the damages sought were based on the alleged breach of a contract. Court did not err by granting summary judgment against title agency's claim for indemnification because the claims asserted against it did not involve the indemnified services.Stewart 8/17/2017
State v. Moore 105415Conceded error, postrelease control. The state concedes that the trial court erred when sentencing the appellant to a five-year postrelease control term instead of a three-year term. The appellant pleaded guilty to a second-degree felony, which requires that he be sentenced to a three-year term of postrelease control.Laster Mays 8/17/2017
State v. Asadi-Ousley 104267Motion to continue trial; sufficiency of evidence; manifest weight of the evidence; merger, ineffective assistance of counsel; Strickland; sexually violent predator specification; rape; kidnapping; felonious assault. Judgment affirmed. Defense counsel affirmatively waived defendant's third motion to continue on the day of trial when he told the trial court that they were prepared to go forward that day. The trial court considered the harm defendant caused to the victim and defendant's prior criminal record when finding defendant guilty of the sexually violent predator specification. The jury did not lose its way because defendant was found guilty based on the evidence of several witnesses and corroborating DNA testing. The felonious assault, kidnapping, and rape convictions were not allied offenses subject to merger.Gallagher 8/17/2017
In re C.L. 104661R.C. 2923.02; 2907.02(A)(1)(b); attempted rape; delinquent; adjudication; exception; R.C. 2151.356(A); seal; record; expungement; juvenile; eligibility. The juvenile court was not barred from sealing records of appellee's attempted rape delinquency, because the eligibility restrictions set forth under R.C. 2151.356(A) and (C)(1) are expressly limited to adjudications for the offenses of aggravated murder, murder, or rape.Gallagher 8/17/2017
State v. Landrum 104511App.R. 26(B); ineffective assistance of appellate counsel; competency report; amended indictment; trial strategy; evidence outside the record. Application for reopening denied where applicant failed to show a colorable claim of ineffective assistance of appellate counsel. Applicant's proposed assignments of error failed to demonstrate that appellate counsel was deficient because trial counsel's representation fell within the range of reasonable professional assistance. Matters of trial strategy do not provide grounds for ineffective assistance of trial counsel. It is well-settled that matters outside the record do not provide a basis for reopening under App.R. 26(B).Stewart 8/15/2017
State ex rel. Thompson v. Saffold 105741Mandamus; procedendo; and mootness. Mandamus and/or precedendo action to compel rulings on various motions was rendered moot by the respondent judge ruling on the subject motions.Celebrezze 8/14/2017
State ex rel. Harrison v. Gallagher 105838Mandamus; procedendo; mootness; and R.C. 2969.25. Procedendo and mandamus action to compel judge to rule on a postconviction relief petition, a motion for expert assistance, and a motion for counsel was rendered moot, when the judge ruled on the subject motions. Also, relator did not file the required affidavits under R.C. 2969.25.Gallagher 8/11/2017
State v. Brown 103491Application to reopen; App.R. 26(B); ineffective assistance of appellate counsel; ineffective assistance of trial counsel; probable cause; motion to suppress; and speedy trial. Counsel was not ineffective for failing to argue probable cause and failure to file a motion to suppress. Traffic violations provided a sufficient cause to stop and investigate. Trial counsel made a reasonable strategic decision not to file a motion to suppress. A review of the docket showed that there was no deprivation of the right to a speedy trial.Gallagher 8/11/2017