Volume 256 — North Eastern Reporter, Third Series

Osowik - Following his conviction for aggravated murder and rape and sentence of death, defendant filed a petition for post-conviction relief, asserting 66 grounds for relief. As to many claims, the trial court failed to rule, applied the wrong legal standard or issued findings of fact and conclusions of law that lack the specificity required by R.C. 2953.21(D), any of which require their remand and, in some cases, a hearing. The trial court further erred in denying petitioner "access" to prosecution's file materials under Crim.R. 42(C), also requiring remand.

CIVIL - domestic violence protection order; R.C. 3113.31; subject matter jurisdiction; county of residence; R.C. 2903.214; continuation of jurisdiction; plain and unambiguous; legislative intent; absurd result; venue; Civ.R. 3(C); custody proceedings

Aggravated trafficking in drugs; methamphetamine; motion to continue trial; motion to substitute counsel; counsel of choice; abuse of discretion; motion to suppress; probable cause; reasonable articulable suspicion; traffic stop; car-length rule; ineffective assistance of counsel; counsel's failure to file a motion to suppress search of bag in trunk of vehicle; counsel's failure to retain DNA/fingerprint expert; counsel's failure to call witnesses; counsel's failure to inform defendant of no contest plea option; counsel's failure to question during voir dire of potential racial prejudice and jury's opinion if defendant does not testify; "trial tax" of imposing a sentence greater than plea offer; and Reagan Tokes Act unconstitutional – violates separation-of-power, right to a jury trial, and due process

CRIMINAL LAW – rape of child under 13 years of age; R.C. 2907.02; force or threat of force; R.C. 2971.03; R.C. 2901.01(A)(1); sexual conduct; R.C. 2907.01; gross sexual imposition; R.C. 2907.05; sexual contact; life without parole; sufficient evidence; manifest weight of the evidence; authority figure; victim's will overcome by fear or duress; felony sentencing; R.C. 2953.08(G)(2); R.C. 2929.11; R.C. 2929.12; otherwise contrary to law.

Motion to vacate forfeiture order; subject-matter jurisdiction; forfeiture as part of guilty plea; res judicata. In December 2005, the defendant pled guilty to various offenses and, as part of the plea, agreed to forfeit several items. The defendant did not file a direct appeal. The defendant was sentenced to a lengthy prison term in various other cases in Ohio. The defendant filed multiple appeals, writs, and motions in the trial court. Related to this appeal, in March 2024, the defendant filed a motion to vacate the forfeiture order from 2005. Because the defendant agreed to forfeiture as part of his plea, the prosecutor's failure to file a petition for forfeiture did not divest the trial court of jurisdiction. Furthermore, the defendant's arguments challenging forfeiture are barred by the doctrine of res judicata.

Attempted murder; felonious assault; self-defense; sufficiency of the evidence; manifest weight of the evidence; admissibility of evidence; body-camera video; App.R. 16(A)(7); jury instruction on flight; consecutive sentences for firearm specifications. Defendant's convictions for attempted murder and felonious assault are affirmed. The relevant issue in this case, which went to a jury trial, was whether the defendant acted in self-defense when he shot the victim five times. After reviewing the record, we determine that defendant's convictions are supported by sufficient evidence and are not against the manifest weight of the evidence. This is not the exceptional case where the jury lost its way in convicting defendant of attempted murder and felonious assault. Defendant failed to show reversible error in the admission of evidence, jury instruction and consecutive sentences for firearm specifications.

Murder; drive-by shooting; planned; sufficiency of the evidence; manifest weight; involuntary manslaughter; having weapons while under disability; use of firearm by a violent career criminal; complicity; aiding; abetting; accomplice; inference stacking. - The State's use of inference stacking to prove that the defendant possessed or used a firearm was improper. Defendant's convictions upheld under a complicity theory because the evidence proved that the defendant aided and abetted in the murder and subsequent drive-by shooting at a residence. Defendant was not merely present but rather intended to participate in the armed robbery that pivoted to murder and a drive-by shooting once they believed they were being set up by the murder victim.

Appellate briefs by criminal appellant and counsel; waiver of issue raised on appeal; double jeopardy; dual sovereignty; res judicata; jail-time credit; state and federal sentences; abuse of discretion

Jury Instruction; affirmative defense; entrapment; evidence; harmless error; bribery; manifest weight. Trial court properly refused to provide a jury instruction on the affirmative defense of entrapment where the evidence did not support an entrapment defense. Trial court's decision not to instruct a witness to stop using the words "bribe" or "bribery payment" was not improper because the words "bribe" and "bribery payment" are commonly understood and did not amount to legal conclusions. Defendant's bribery convictions were not against the manifest weight of the evidence where video evidence clearly showed the defendant accepting cash in exchange for fake police reports.

Menacing; ethnic intimidation; R.C. 2903.22(A); R.C. 2927.12(A); misdemeanor; Crim.R. 29; sufficiency; manifest weight; race; color; racial slurs; racially abusive language; predicate offense; underlying offense; motivating factor; totality of the circumstances; infer; venue; R.C. 2901.12(H); course of conduct. Affirmed appellant's convictions for menacing under R.C. 2903.22(A) and ethnic intimidation under R.C. 2927.12(A). The convictions were supported by sufficient evidence and were not against the manifest weight of the evidence. Following a disagreement over a shoe return, there were multiple interactions with the employees of the store in which appellant engaged in menacing conduct and repeatedly directed racial slurs at one of the victims. Although words alone are generally not enough to establish ethnic intimidation, in this matter the appellant engaged in actions and ongoing behavior from which it could be reasonably inferred that she committed the predicate offense of menacing, at least in part, by reason of race, color, religion, or national origin. Appellant failed to demonstrate plain error in regard to her venue challenge, and venue was proper pursuant to R.C. 2901.12(H)(1) and (3).

R.C. 1309.332(B) — CONVERSION — UNIFORM COMMERCIAL CODE — UCC 9-332 – DEPOSIT ACCOUNT: Absent collusion between the transferee and the account holder, R.C. 1309.332(B) bars recovery for conversion by a party holding a first-priority security interest in accounts receivable from a transferee who takes these funds from a deposit account.

Appellant's conviction for attempted arson was supported by sufficient evidence. The trial court did not commit plain error in admitting alleged gruesome photos, which aided in proving the charges. Appellant's trial counsel did not act ineffectively in failing to ask for a mistrial based on an outside party's communication with a juror; the trial court properly held a hearing and found that the juror could be impartial. Given this fact and the overwhelming evidence against appellant, there was no basis for a mistrial. The trial court did not err in ordering a minimal amount of restitution, and its consideration of appellant's ability to pay can be inferred from the circumstances. R.C. 2929.14(B)(1)(g) does not violate double jeopardy protections by allowing sentence to be imposed on a firearm specification that was part of a merged offense; the Supreme Court of Ohio found this sanction permissible in State v. Bollar, 2022-Ohio-4370. Finally, the trial court did not err in admitting evidence pertaining to a bullet casing found at appellant's home and a box of bullets found on a neighbor's roof. These items were consistent with the bullet found in the victim's body and were relevant to the charge of tampering with evidence. Judgment affirmed.

The Ohio Board of Tax Appeals ("BTA")'s decisions finding that Biskind is a responsible party of Biskind Contract Cleaning, L.L.C. ("BCC") for unpaid sales tax and unpaid withholding tax is reasonable and lawful because those decisions are fully supported by the facts and evidence presented at the hearing. A responsible party may not simply delegate away his or her responsibilities in order to escape liability, and the evidence adduced at the BTA hearing readily shows that pursuant to R.C. 5739.33, as amplified by Ohio Adm. Code 5703-9-49(A) and (C), Biskind is a responsible party for purposes of unpaid sales tax. Likewise, the evidence shows that Biskind had control and/or supervision over BCC's withholding tax filings and payments because he had direct or indirect authority over the persons charged with doing the actual filing of the returns. The decisions and orders of the BTA are affirmed.

Trial counsel did not provide ineffective assistance of counsel and appellant's consecutive sentences are not clearly and convincingly contrary to law.

The trial court did not err in dismissing with prejudice appellant's foreclosure action as time-barred following the vacation of a default judgment due to lack of service and the subsequent successful service of appellee-homeowner. Judgment affirmed.

Judgment against surety without due process

R.C. 2323.52 – VEXATIOUS LITIGATOR OR CONDUCT: The common pleas court erred by granting defendant's R.C.2323.52 motion to declare plaintiff a vexatious litigator where there was no clear and convincing evidence presented that plaintiff habitually, persistently, and without reasonable grounds engaged in vexatious conduct.

Duhart. Summary judgment properly granted because there exists no genuine issue of material fact regarding: 1) the unconstitutional taking claim; 2) due process claims; 3) the vagueness claim; or 4) the retaliation claim. Appellant's claim regarding the failure to exhaust administrative remedies is moot.

Failure to inform defendant of effect of plea

SANCTIONS — R.C. 2323.51 — CIV.R.11 — UNNECESSARY DELAY: The trial court abused its discretion in awarding sanctions against defendants and their counsel where the record lacked competent, credible evidence to support the trial court's determination that counsel's day-of-trial request for a continuance to file an affidavit of disqualification was done for the improper purpose of causing unnecessary delay.