Volume 201 — North Eastern Reporter, Third Series

Trial court erred in granting summary judgment to a motor carrier on the ground the parties' broker-carrier agreement, which contained an express indemnification clause, did not evince a clear intent to abrogate the common-law indemnification requirements.

Rape R.C. 2907.02(A)(1)(b) sexual conduct R.C. 2907.01(A) vagina labia vulva anatomy knowledge of minor insertion penetration force or threat of force R.C. 2971.03(B)(1)(C) gross sexual imposition R.C. 2907.05(A)(4) sexual contact R.C. 2907.01(B) illegal use of minor in nudity-oriented material R.C. 2907.323(A)(1) nudity R.C. 2907.01(H) nude photos naked photographs vague and ambiguous testimony sufficiency of the evidence victim testimony corroboration Crim.R. 29 motion for acquittal manifest weight of the evidence structural error judicial bias jury selection voir dire Confrontation Clause hearsay ineffective assistance of counsel failure to object plain error cumulative error. There was insufficient evidence to sustain a conviction for illegal use of a minor in nudity-oriented material or performance. The minor female testified that the defendant asked her for "naked pictures." She said she sent him photographs that showed her face, which she took while she was completely naked. The photographs were not nudity-oriented material unless they depicted one of the body parts enumerated in the statutory definition of "nudity." The state did not elicit any testimony about what body parts — beyond the minor's face — were depicted in the photographs, which were not admitted into evidence. The minor's testimony would be equally consistent with a description of photographs that did not depict nudity. We affirmed the defendant's convictions for rape and gross sexual imposition, which were supported by sufficient evidence and were not against the manifest weight of the evidence. The defendant argued that the victim may not have known enough about anatomy to differentiate her vagina from other genital structures, but it is well-settled that if the force of an object — like a finger — causes a victim's labia to spread, that is sufficient penetration to constitute "sexual conduct" under the statute it is not necessary for an object to penetrate into the vagina. There was sufficient evidence of rape where the minor victim testified that the defendant touched the "inside" of her "lower" "private part." We found that the trial court erred in giving the jury a flight instruction where it was not clear that the defendant appreciated that he had been identified as a person of interest in a criminal investigation and was taking active measures to avoid being found. While the trial court should not have given the instruction, we found the error harmless. The trial court's excusal of a venireperson for cause, which the defendant claimed was erroneous, was not a manifestation of bias against the defendant where the trial court based the excusal on an assessment of the venireperson's credibility during voir dire. It was not plain error for the trial court to admit a detective's testimony that the victim's father offered reward money for the defendant's location, because it is not clear that the outcome of the proceedings would have been different had the testimony been stricken. The defendant's trial counsel was not ineffective by discussing the defendant's lack of legal immigration status during voir dire and during the trial, where this discussion was clearly part of the defense strategy. Trial counsel was not ineffective by failing to object to the detective's testimony about the reward money, as we cannot say that the jury's verdict would clearly have been different if the jury had not heard the testimony or had been instructed to disregard it.

Abuse of discretion in post-decree decree

CONTRACTS — WAIVER BY ESTOPPEL — RELEASE — ALTER EGO — SETTLEMENT — PREJUDGMENT INTEREST — BREACH OF CONTRACT — LITIGATION PRIVILEGE: The trial court did not err in finding that plaintiff had waived by estoppel a claim for damages because he had accepted 64 months of payments from defendants based off a lower amount. The trial court did not err in finding that plaintiff's suit against certain defendants was in violation of a release in a settlement agreement drafted between the parties. The trial court did not err in finding that the defendants did not act in bad faith when it denied denied plaintiff's motion to compel where defendants had provided plaintiff with ample documentation and where plaintiff sought financial information that he should already have possessed. The trial court erred in failing to award plaintiff prejudgment interest on his damages award in accordance with R.C. 1343.03. The trial court did not err in finding that plaintiff's allegedly disparaging statements were covered by the litigation privilege.

CONTRACTS – BEST EFFORTS – FRAUD: The trial court erred by granting summary judgment in favor of commercial landlord-plaintiff where a genuine issue of material fact existed as to whether landlord had exercised best efforts to fulfil a contractual obligation in the lease: The duty of best efforts requires the promisor to pursue its contractual obligations diligently and with reasonable effort considering its ability, the means at its disposal, and the other party's justifiable expectations.The trial court properly granted summary judgment in favor of commercial landlord-plaintiff on counterclaims for fraudulent inducement and fraud where the evidence showed that landlord's representations to lessee-defendant were not false at the time they were made.

Decedent died after semi-tractor impacted stationary trailer. Plaintiff appealed from summary judgment decision favoring defendants on negligence claim asserting that the trailer's defective landing legs and the defendants' negligence contributed to decedent's death. Plaintiff's experts opined that decedent's injuries were due to failure of trailer's landing legs. However, neither expert performed any testing on the landing legs. Both experts simply presumed that landing legs were structurally defective. Speculation and inference were insufficient to establish a genuine issue as to proximate cause.

Competent, credible evidence supports the trial court's determination that appellee/cross-appellant did not transform her separate property into marital property by gifting appellant/cross-appellee an interest in the property. Competent, credible evidence supports the trial court's valuation of the parties' vehicle. Application of the law of the case doctrine overcome where mistake in a previous appellate decision on marital property was within concept of manifest injustice. Further, because deviation from the law of the case results in a change to the distribution of marital assets, the trial court is directed to revisit the issue of spousal support on remand. The trial court erred by failing to address certain videos and photographs in its final judgment entry.

The Fair Housing Act ("FHA") preempts state law claims for contribution brought pursuant to R.C. 2307.25 because such claims stand " 'as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress' ", in this case the FHA. English v. Gen. Elec. Co., 496 U.S. 72, 79 (1990), quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941). Thus, the trial court did not err in dismissing Epcon's contribution claim as preempted by the FHA, appellant's sole assignment of error is overruled and the judgment is affirmed.

Nonparty discovery order Marsy's Law Ohio Constitution, Article I, Section 10a, Ohio Constitution, Article I, Section 14, victim's rights accused's rights Fourth Amendment, criminal defendant's constitutional rights balancing test abuse of discretion. A trial court has the authority to issue discovery orders to non-parties in a criminal case. When confronted with a criminal defendant's discovery request to inspect a victim's home, the trial court must balance the rights of the victim versus the criminal defendant's rights. The trial court is to consider the victim's Ohio Constitutional right to refuse discovery under Marsy's Law, Ohio Constitution, Article I, Section 10a the victims right to privacy and to be secure in their home pursuant to the Fourth Amendment and Ohio Constitution, Article I, Section 14 against the defendant's request for the inspection, which at a minimum must be a legitimate request to inspect the home that demonstrates a necessity in order to preserve the defendant's rights. In this case, the trial court applied an incorrect standard of law by weighing the de minimis nature of the intrusion of the victims' home against a generalized assertion that the inspection was necessary to preserve defendant's rights. Judgment ordering the inspection of the victims' home is reversed.

The trial court erred by granting summary judgment in favor of the defendants-appellees as to the intentional-interference-with-the-expectancy-of-an-inheritance claim. The trial court did not err by granting summary judgment in favor of the defendants-appellees at to the undue-influence and fraud claims.

The trial court correctly applied the law to the facts as set forth in the magistrate's decision to conclude that the plaintiff-appellant failed to prove ownership and a right to possess a bank account because she failed to prove that the parties established the account under Ohio's Uniform Transfer to Minors Act.