Volume 257 — North Eastern Reporter, Third Series

CRIMINAL - FELONY SENTENCING - JUDICIAL RELEASE - Because R.C. 2929.20 only permits sentencing courts to grant judicial release to offenders serving non-mandatory prison terms, the trial court's erroneous labeling of defendant's prison terms as "mandatory by operation of law" in the sentencing entry must be reversed and remanded for the issuance of nunc pro tunc order.

CIVIL - R.C. 1545.09; park district has implied authority to cull deer population to remedy ecological damage and protect the overall health and vitality of the deer population, based on park district's actual authority to protect and preserve natural life therein.

Declaratory Judgment - Enforcement of Charitable Trust - Standing

Sanctions; Civ.R. 11; Civ.R. 45; attorney fees; waiver; reasonableness of fees; sworn evidence; fee bills; disqualification order; mootness; ability to pay. Judgment affirmed. The court's award of sanctions in the form of attorney fees to the plaintiff and two nonparties is affirmed where the record demonstrates that the sanctioned party contested the reasonableness of the fees and the trial court rejected the sanctioned party's arguments and did not abuse its discretion in rejecting the sanctioned party's arguments. Additionally, the sanctioned party's attempt to dispute fees stemming from his disqualification as counsel are moot because no fees were awarded stemming from the disqualification and the trial court did not err in failing to consider the sanctioned party's ability to pay where such evidence was not introduced before the trial court made its decision, despite numerous opportunities to present such evidence.

THEFT – R.C. 2913.02 – POWER OF ATTORNEY – UNIFORM POWER OF ATTORNEY ACT – VICTIMS RIGHTS – MARSY'S LAW – RESTITUTION – R.C. 2929.18 – INEFFECTIVE ASSISTANCE OF COUNSEL – SUFFICIENCY OF THE EVIDENCE – MANIFEST WEIGHT OF THE EVIDENCE: Where the State introduced evidence that defendant had spent her principal's funds under his power of attorney but had left his nursing-home bills unpaid, and where the State offered no evidence that particular expenditures went beyond the scope authorized in the power of attorney, the trial court lacked sufficient evidence to convict defendant for the theft of the full amount of the unpaid nursing- home bills under R.C. 2913.02(A)(2). Where the State introduced evidence that defendant, under her principal's power of attorney, withdrew her principal's funds to gamble, while nevertheless failing to pay her principal's nursing-home bills, the evidence was sufficient to convict defendant for the theft of the funds spent gambling under R.C. 2913.02(A)(2), and her conviction was not against the manifest weight of the evidence. Where a victim of theft owes money to a nursing home, which he can no longer pay because of the theft, the nursing home is not a "victim" of that theft entitled to restitution under R.C. 2929.18 and Marsy's Law, because the nursing home was only indirectly injured by the theft. Where a claim for ineffective assistance of trial counsel is predicated on counsel's failure to introduce certain evidence at trial, that claim will nearly always fail on direct appeal, where the reviewing court may not consider evidence outside the record, and is better suited for a postconviction proceeding. Where a hearsay statement explained the motive for otherwise undisputed expenditures, but where the expenditures themselves were sufficient to prove theft, trial counsel's failure to object to the hearsay statement did not prejudice defendant.

The trial court did not err in denying a father's petition for a writ of mandamus to compel a city to provide him certain records related to the city's investigation of his daughter's death.

CIVIL – Civ.R. 60(B); motion for relief from judgment; GTE prongs; timely filed; Appellants fail to demonstrate a meritorious defense or claim; Appellants are not entitled to relief under Civ.R. 60(B)(3) and (5); judgment affirmed.

The trial court did not abuse its discretion in finding that the Ohio Department of Insurance's decision to revoke appellant's Ohio resident insurance agent license was supported by reliable, probative and substantial evidence. Judgment affirmed.

Conviction affirmed. Defendant forfeited arguments regarding the jurisdiction of the arresting officer and whether a purported confession should be barred under 404(B) because they were not raised at the trial level. Officer had reasonable suspicion to detain and probable cause to arrest where defendant was behaving uncontrollably in his mother's home and, upon being detained, quickly admitted to destroying his mother's television. Defendant's right to represent himself and right to a speedy trial were not violated due to, among other delays, defendant's period of incompetency. The defendant's Fifth Amendment rights were not violated because the offending testimony was immediately stricken and the jury was given an instruction to disregard it. The defendant's conviction for illegal assembly or possession of chemicals for the manufacture of drugs was supported by the manifest weight of the evidence because the defendant possessed various substances and items used to make methamphetamine and admitted to making methamphetamine.

No-contest plea; ineffective assistance; fugitive from justice

OVI community control condition prohibiting "enter[ing] premises serving alcohol" is valid.

SUMMARY JUDGMENT — MANIFEST WEIGHT — BREACH OF CONTRACT — SUBSTANTIAL PERFORMANCE — IMPLIED DUTY OF GOOD FAITH AND FAIR DEALING: The trial court did not err in denying plaintiffs sellers' motion for summary judgment because plaintiffs' claims as to whether defendants buyers breached the parties' contract for the purchase of a home rested upon genuine disputes of material facts as to the condition of the home and the cause of water damage and rendered resolution at the summary judgment stage inappropriate. The trial court's finding that defendants buyers did not breach the parties' contract was not against the manifest weight of the evidence as plaintiffs sellers failed to prove that they specifically performed under the terms of the contract. The trial court's finding that defendants buyers did not breach the implied duty of good faith and fair dealing was not against the manifest weight of the evidence as plaintiffs sellers failed to prove that defendants' cancellation of the contract on the basis of insurance costs was not permitted under the contract.

Theft; restitution; notice of sentencing hearing to victim and prosecution; Marsy's Law; State's appeal; appeal as of right; leave to appeal; lack jurisdiction; Ohio Constitution, Article I, Section 10a; Ohio Constitution, Article IV, Section (3)(B)(2); App.R. 5(A); R.C. 2929.18(A)(1); R.C. 2929.28(A)(1); R.C. 2929.01(L); R.C. 2945.67(A)

CRIMINAL - motion to withdraw plea; presentence motion; freely granted; abuse of discretion; ineffective assistance of counsel; Crim.R. 32.1; assertions of innocence; counsel's unwillingness to proceed to trial; lack of prejudice to the state; not a mere change of heart

CIVIL - unemployment compensation benefits; review commission; administrative appeal; R.C. 4141.282; R.C. 4141.29; new condition of continuing employment; just cause; fault; unsuitability.

CRIMINAL - restitution; probation; direct appeal; res judicata; conversion to a civil judgment; collection of judgment; authority; nullity

capacity to contract; threshold issue for the court; motion to dismiss; motion to enforce arbitration agreement; R.C. 2711.02.

R.C. CH. 2506 — ADMINISTRATIVE APPEAL — ZONING — JURISDICTION: In this administrative appeal, the trial court did not err in upholding the decision of the appellee Board of Zoning Appeals to affirm a legal notice of violation that was issued to appellant for a violation of Section 1125.07 of the Village of St. Bernard's Zoning Ordinance where appellant erected or constructed a sign in violation of Section 711.07(e) of the Village's Codified Ordinances, and Section 711.07(e) was incorporated into the Zoning Ordinance through Section 1185.01(c).The trial court did not err in finding that it lacked jurisdiction in an administrative appeal to address appellant's facial constitutional challenge to Chapter 711 of the Village of St. Bernard's Codified Ordinances where appellant does not dispute that it was seeking a general declaration as to the unconstitutionality of Chapter 711. [See CONCURRENCE: Appellant would likely have prevailed on its challenge to the Board of Zoning Appeals' decision had it raised the issue of nonconformity under Section 711.05(c) of the Village of St. Bernard's Zoning Ordinance.]

The trial court did not err in dismissing Barnes' administrative appeal for lack of subject-matter jurisdiction because the email from which Barnes attempted to appeal is not an order issued pursuant to an adjudication under R.C. 119.12.

The trial court erred in granting summary judgment to appellee insurance company on appellant's bad faith claim. Genuine issues of material fact exist concerning whether appellee acted in bad faith in handling appellant's uninsured motorist's claim. There are also genuine issues of material fact regarding appellant's claim for punitive damages. Judgment reversed and remanded.

GROSS SEXUAL IMPOSITION - EVIDENCE - RELEVANCE - GROOMING - PROSECUTORIAL MISCONDUCT - APPELLATE REVIEW/CRIMINAL - HEARSAY - EVID.R. 803(4) - STATEMENTS FOR MEDICAL DIAGNOSIS AND TREATMENT - INDICTMENT - JURY INSTRUCTIONS - CONSECUTIVE SENTENCES: The trial court did not err in admitting evidence that defendant had showed a child victim pornography depicting naked women because that evidence was relevant to show that he was grooming the child victim and normalizing sexual behavior to her. Defendant did not show that any prosecutorial misconduct rose to the level of plain error where that alleged misconduct was made in response to defense counsel's statements, the trial court gave proper limiting instructions, and the prosecutor's statements were fair comments on the evidence and did not denigrate defense counsel. Where defendant argued that the prosecutor asked leading questions of all the State's witnesses, listed 12 pages of the transcript where he alleged that the prosecutor asked leading questions, and did not specify which of the questions were improper, the appellate court will not address that argument because defendant bore the burden to show error by reference to the record, and it was not the court's duty to root out the alleged improper questions. The trial court did not err in admitting into evidence testimony about statements made by the victim in a forensic interview about the sexual abuse and identifying defendant as the perpetrator because those statements fell within the hearsay exception for statements made for medical diagnosis and treatment set forth in Evid.R. 803(4) where the interviewer testified that she had no other agenda than helping the victim feel safe and to obtain appropriate treatment for the victim. There was sufficient evidence to support defendant's convictions for gross sexual imposition and defendant's convictions were not against the manifest weight of the evidence where the victim presented a detailed, coherent narrative of the defendant's actions, any inconsistencies in her testimony did not relate to the elements of the offenses, but to the circumstances surrounding those offenses, and the victim's testimony did not have to be corroborated by physical evidence. Defendant was not deprived of due process where the indictment failed to specify a specific time frame for the offenses because defendant did not present an alibi defense and the State provided him a bill of particulars that described specific factual acts and the location where those acts had occurred. The trial court did not commit plain error in instructing that the jury only needed to find that the offenses took place on a date reasonably near the date claimed in the indictment because precise dates and times are not essential elements of offenses and the instruction tracked pattern jury instructions. The trial court did not err in imposing consecutive sentences where the court made the required findings, and those findings were supported by the record. The appellate court may not independently weigh the evidence in the record and substitute its judgement for the trial court concerning the sentence that best reflects compliance with R.C. 2929.11 and 2929.12.

Per Mayle, J., statements made in news article, characterizing complaints as having alleged that detective "mishandled" investigation, were protected by privilege set forth in R.C. 2317.05 because they were impartial and fairly summarized substance of complaints filed in civil suit. Trial court properly granted summary judgment in favor of newspaper and its editor.

The trial court did not err in finding that the driver of a borrowed tractor on a public roadway was not an "insured" under a farm owner's policy of insurance, as the driver was not performing "domestic duties" relating to the "insured premises" or performing duties "as an employee of an insured, or for the benefit of the insured." Additionally, the policy's "incidental coverage" provision did not offer reinstatement of coverage to the motorized vehicle exclusion, because the incident occurred on a public roadway, not on the "insured premises." Summary judgment was properly granted in favor of the insurance company. Judgment affirmed.

summary judgment – insurance – occurrence – loss – intentional – expected – malicious – criminal – shooting – point-blank range

CRIMINAL – Defense counsel's suspension for failure to pay continuing legal education fine during two-day trial did not constitute per se violation of Sixth Amendment right to counsel. No Sixth Amendment violation occurs where Appellant fails to show defense counsel's performance was deficient and that Appellant suffered outcome-determinative prejudice as a result. R.C. 2945.75(A)(2) does not apply to criminal statute that describes separate crimes in subsections. Order of forfeiture must be reversed and vacated where the trial court fails to conduct proportionality review.

Judgment reversed. Based on Kiser v. United Dairy Farmers, 10th Dist. No. 22AP-539, 2023-Ohio-2136, the trial court erred by refusing to consider appellant's uncorroborated affidavit during the court's summary judgment analysis. If true, the statements in appellant's affidavit would establish appellees breached a provision in the parties' purchase agreement. As such, the trial court erred by granting appellees' motion for summary judgment.

Sulek, J. The jury's verdict rejecting appellant's self-defense claim was not against the manifest weight of the evidence. Murder, felonious assault, self-defense, consciousness of guilt, Batson challenge.

SLIP AND FALL - NEGLIGENCE - SUMMARY JUDGMENT - CIV.R. 56 - REASONABLE INFERENCES: Given the inconclusive evidence and factual ambiguity regarding how the liquid got onto the hospital's service hallway floor, nonmovant nursing student's deposition testimony about a hospital employee mopping nearby reasonably supported an inference that the liquid the injured student slipped on was from the mopping. The trial court erred in failing to construe this evidence in the light most favorable to the nonmovant nursing student and granting summary judgment in favor of the hospital because the nursing student failed to "prove" the hospital's employee created the hazard. At the summary judgment stage, the nonmoving party is not required to prove anything with certainty, but, instead, is required only to meet the evidence furnished by the moving party so as to show there remains a genuine issue of material fact. Judgment reversed; cause remanded.

summary judgment, R.C. 4113.52, retaliatory discharge