The Second District Court of Appeals for Ohio released 13 opinions on Friday, February 24th, 2012.  3 of them were in boring civil cases including one over a development being upset with the developer not providing enough green space.  The other 10 were in criminal cases with a number of them being Anders briefs (a brief filed by the attorney indicating that upon review of the records there are no appellable issues.).  One case is a great view into how we can attack the credibility and testing done by a police pilot in a speeding case.

This is my third installment on the Beck Law Office, L.L.C. blog and I welcome any and all feedback, good or bad so that I may improve. 

State v. Williams  2012 Ohio 725

Defendant pro se from his conviction and sentence for one count of speeding (87mph in a 65) in Xenia Municipal Court.  Defendant was sentenced to a $100 fine and a six month license suspension.  Defendant claims multiple errors all of which are denied.  The only one worth mentioning is that Defendant contends that the trial court erred in suspending his license.  The trial court may suspend a person’s driver’s license upon a finding of reckless driving.  Defendant was clocked by a State Highway Patrol airplane pilot who testified that he observed the Defendant driving 87 miles per hour in a 65 and weaving in and out of traffic to pass other vehicles.  Court of Appeals finds this is enough for recklessness.

MORAL OF THE STORY:  Not so much of a moral but we do learn from this case what testimony an airplane pilot for the State Highway Patrol should testify to about how he verified the distance between the mile markers to make sure his calibrations and math is correct. 

State v. Chambers  2012 Ohio 726

Defendant appeals his the imposition of post-release control on his 2005 conviction for 1 count of Rape of a child under 13 and Felonious Assault.  Defendant was sentenced to life with the eligibility of parole on the Rape and a consecutive 8 year sentence on the Felonious Assault.  Defendant was later resentenced to add post-release control.  Counsel filed an Anders brief citing that there were no grounds for appeal.  Court agrees and finds no grounds

MORAL OF STORY:   None that I can see.  Just another Post-Release Control loss.   

State v. Baker  2012 Ohio 729

Defendant appeals the trial court’s denial of his Motion for Intervention in Lieu of Conviction on his charge of Carrying a Concealed Weapon.  Defendant and two friends went to a club.  When Defendant was leaving the club he was confronted by security for urinating in the parking lot.  Defendant and security guards got in argument and Defendant was taken into custody.  During the scuffle Defendant kept trying to reach into his front pocket.  After being taken into custody Defendant was patted down and security found a loaded handgun and bag of marijuana.  Defendant filed for Intervention in Lieu of Conviction pursuant to O.R.C. 2951.041.  The State objected and the Court held a hearing where it ruled that he was not eligible for Intervention and even if he was the court is exercising its discretion and denying Defendant’s request. 

COURT OF APPEALS DECISION:  Review of a denial for Intervention is under an “Abuse of Discretion” standard which means that the decision was unreasonable.  A decision is unreasonable if there is no sound reasoning process that would support that decision.  Because the Trial Court said that it was denying the motion because he kept reaching for the gun that was good enough to support the denial. 

MORAL OF THE STORY:  Even when the Trial Court erred in finding Defendant he wasn’t eligible and he in fact was eligible as long as the Court hedges its bet and says it would have denied it anyway it won’t survive appeal. 

State v. Parsons 2012 Ohio 730

Defendant appeals pro se from the trial court’s denial of his “Motion to Correct Void Judgment or Sentence.” Defendant’s complaint is that the trial court failed to merge his Kidnapping charge with his 4 counts of Felonious Assault. 

COURT OF APPEALS:  Defendant failed to raise the issue on direct appeal and therefore his argument is waived.
MORAL OF THE STORY:  Always consider merger when there are multiple counts. 

State v. Margin  2012 Ohio 732

Defendant appeals his conviction and sentence for 1 count of Felonious Assault and his sentence for 6 years in prison.  Defendant Defendant offers three assignments of error:

1.      Trial court erred in failing to convict him of the lesser included offense of Aggravated Assault

2.      Manifest weight

3.      Insufficient Evidence to establish a conviction for Felonious Assault

The notable issue is the lesser included argument.  Defendant was working through Labor Ready which would send individuals to a work site and if they were able to return to Labor Ready before six p.m. on the same day would be paid for the work.  If they didn’t make it back in time they could get paid the next day.  October 19^th, 2010 Defendant was sent by Labor Ready to work at a construction site.  He returned after six p.m. and Labor Ready was closed.  Flemingson was the person in charge of Labor Ready that night and as he was walking out after locking up was confronted by Defendant.  Defendant demanded Flemingson reopen and pay him for the work.  Flemingson refused to reopen and told Defendant to come back tomorrow.  Defendant became angry and attacked Flemingson.  Flemingson suffered facial fractures, concussion, bruises, shoulder strain, and a back strain. 

Defendant’s offered no defense and did not offer any evidence.  However, Defendant claims that he should be guilty of Aggravated Assault because he acted under “the influence of sudden passion or sudden fit of rage caused by provocation of the victim.”  Provocation, to be serious, must be reasonably sufficient to bring an extreme stress and the provocation must be reasonably sufficient to incite or to arouse the Defendant into using deadly force. State v. Crawford  2008 Ohio 4008.

DECISION:  Defendant failed to provide any evidence that the victim provoked the response.  The Court of Appeals goes on to state that as a matter of fact it appears that the reason for the assault was very petty.  The Defendant also claims that there was no evidence to establish serious physical harm and the Court held facial fractures, concussion, and strains are serious enough.

MORAL OF THE STORY:  Always keep in mind the jury instruction definition of serious physical harm.  (5) "Serious physical harm to persons" means any of the following:

(a) Any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment;

(b) Any physical harm that carries a substantial risk of death;

(c) Any physical harm that involves some permanent incapacity, whether partial or total, or that involves some temporary, substantial incapacity;

(d) Any physical harm that involves some permanent disfigurement or that involves some temporary, serious disfigurement;

(e) Any physical harm that involves acute pain of such duration as to result in substantial suffering or that involves any degree of prolonged or intractable pain.

State v. Moody  2012 Ohio 733

Defendant was convicted in 2005 of sexual battery and classified as a sexually oriented offender.  January 1^st, 2008 Defendant was reclassified as a Tier III registrant. Defendant was indicted in 2010 for failure to notify of change of address, a felony of the third degree.   Defendant filed to dismiss based on Bodyke.  Motion to Dismiss was denied and Defendant plead no-contest to one count of attempted failure to notify as a fourth degree felony.  Counsel filed an Anders brief stating that there are no appealable issues.  The Court of Appeals independently reviewed and agreed.  Appeal dismissed.

MORAL OF THE STORY:  The record in this case is not real clear if Bodyke helps or not.  Trial counsel should always make sure to set up the record for appellate review. 

State v. Smith 2012 Ohio 733

Counsel filed an Anders brief citing no issue for appeal and Court of Appeals agreed. 

State v. Peterson 2012 Ohio 735

Defendant appeals her conviction and sentence after being found guilty at a bench trial of one count of Assault, a misdemeanor of the first degree, and her sentence of 180 days in jail with 150 suspended.  November 8^th, 2010 Wright, 4 months pregnant, went to Davis’, father of the unborn child, apartment to visit him.  Wright testified that she knocked on the door for about a minute before the next door neighbor, Defendant, came out and called her a bitch and told her to stop banging on the door.  At that time words were exchanged and Defendant punched Wright in the face.  Two other people came out of Defendant’s apartment and sprayed Wright with mace and then all three started kicking Wright.  Wright went to the doctor and was checked out and treated for her injuries.  Defendant challenged manifest weight and sufficiency without specifically pointing to any reason why the evidence was lacking.  Defendant also challenged her sentence as unfair. 

COURT OF APPEALS:  Held the sentence was fair because she only received 30 days she could have gotten more. 

MORAL OF THE STORY:  I struggle to find a moral in this story.  It did come out from testimony that Defendant’s niece was fooling around with Davis so I guess the moral is Hell hath no fury like a woman scorned. 

 State v. Shepherd 2012 Ohio 736

Defendant appeals his conviction from a guilty plea for one count of Breaking and Entering, felony of the fifth degree, and one count of Vandalism, felony of the fifth degree due to damage over $500.  Defendant claims that the trial court erred in failing to grant his request to merge the two counts as “allied offenses of similar import”.  Defendant was caught breaking into a carry-out where he pried open an exterior door and smashed the glass from an interior door to go in and steal cigarettes.  He claims that the two doors were the only causes for vandalism and that those were damaged as part of the Breaking and Entering.

ANALYSIS:  The Ohio Supreme Court simplified the test for “allied offenses” with their holding in State v. Johnson 128 Ohio St. 3d 153.  The test to determine if two or more offenses are “allied” is to look at the conduct of the accused.  O.R.C. 2941.25 the court must determine prior to sentencing whether the offenses were committed by the same conduct.  If so they are allied. 

DECISION:  If the only damage done was to the two doors then yes they would be allied however, Defendant fails to mention in his appeal that there were also numerous computers and other items damaged inside the building as he was ransacking the place to steal the cigarettes.  Therefore, no allied offenses because they were damaging things that weren’t necessary to commit the crime. 

MORAL OF THE STORY:  Don’t get carried away when committing a crime.  If you do you may get sentenced twice as hard. 

State v. Peagler 2012 Ohio 737

Defendant appeals her sentence after being convicted of driving under suspension, failure to control, and operating a vehicle under the influence (OVI or DUI).  Defendant was sentenced to 180 days in jail with 177 suspended.  Defendant was given an opportunity to do the three days in a drivers intervention program (3 day DUI course) instead of jail but declined and requested to serve the jail instead.  Defendant now appeals and appellate counsel cites the felony sentencing guidelines. 
COURT OF APPEALS holds you can’t appeal because she got three days in jail after she asked for the jail and if you are going to appeal cite the right statute. 

MORAL OF THE STORY:  Don’t cite statutes that in no way apply unless you are trying to be persuasive and it’s tough to be persuasive if there is another statute that applies to what you are trying to accomplish.  Other question is why are we doing bench trials on OVI’s. 

February 17^th, 2012 The 2^nd District Court of Appeals released 14 decisions. 

Beeper Vibes, Inc. v. Director of Ohio Department of Job & Family Services  2012 Ohio 625

(what’s a beeper?)
Appeal by Beeper Vibes of Unemployment Compensation Decision granting former employee unemployment benefits.  Beeper Vibes claims two errors:

1.       The Trial Court erred by finding that it had failed to show industry standards for sales figures and that those standards were reasonable.

2.       The Trial Court erred by finding that Plaintiff failed to prove the employee had a bad attitude.

DECISION:  Record reflects that Beeper Vibes failed to provide any documentation of industry sales figures and that those figures are reasonable in the industry. 

MORAL OF THE STORY:  If you fire a person citing poor sales figures you better be able to back it up with the industry proof that the standards you set are reasonable and achievable. 

Chaney v. Chaney  2012 Ohio 626

Appeal by Husband of Trial Court’s decision denying changing custody to him.  Divorce occurred in 2000.  Husband tried to change custody of the three minor children in 2004 and 2005 with no success.  Husband again tries in 2010 to get custody of J.C., the couple’s only remaining minor child.   Husband cites poor school attendance of J.C. and that Mom is unemployed and has been so for 2 years as the change in circumstance.  Magistrate finds that she is concerned about the school attendance but Mom says she will try to do better so it’s okay.  Older child testified that he is concerned with J.C. living with Mom and that if she stays with Mom she has no chance for a successful future.  The standard for change of circumstances is established in O.R.C. 3109.04(E)(1)(a):

1.       Change in circumstance of minor

2.       Modification of current order is necessary to serve the best interest of the minor

3.       Harm likely caused is outweighed by the advantages the change would provide.

MORAL OF THE STORY:  It’s extremely tough to change custody.  Even if 1 adult kid testifies against custodian’s ability and that remaining minor has no shot at a future if minor continues living with the custodial parent. 

State v. Dawson 2012 Ohio 627  (non-support of dependents)

Defendant appeals his conviction by jury of two counts of non-support of dependents.  Count 1 covered April 1, 2005 through March 31^st, 2007.  Count 2 covered April 1, 2007 through March 21^st, 2009.  Defendant claimed he provided the support that was within his ability and means. 

DECISION:  It was clear he did not pay his current support obligation and the fact that his income taxes were seized to pay arrearages does not help the charge for current support. No evidence that jury lost its way. 

MORAL OF THE STORY:  Even if Child Support Enforcement takes thousands of dollars of income taxes to pay arrearages it doesn’t help your current obligation. 

State ex rel. Holloway v. Personnel Appeals Board  2012 Ohio 628

Nothing worth noting in this appeal. 
 

Hull v. Clem D’s Auto Sales  2012 Ohio 629

Clem D’s (hereinafter Auto) appeals from default judgment for $15,000 awarded by Darke County Municipal Court to the Hulls.  March 2010 Hull and Auto enter written contract for the purchase of 2000 Pontiac Montana for $2,669.38.  Hulls paid deposit of $2000 in March 2010.  Later in March Hull brought the balance to pay off the car and was informed the new purchase price was $4000.  Hull sued in December 2010 and served Auto by certified mail.  Auto did not answer and Hull received a default judgment in the amount of $15,000.  Auto appeals the amount citing that no evidence was presented or alleged in the complaint to establish the amount of damages. 

DECISION: Because the complaint lacked specificity as to the amount of damages and simply stated amount to be determined at trial not to exceed $15,000.  The case is remanded for hearing on damages. 

MORAL OF THE STORY:  Be more specific in your complaint if you think default judgment is likely then you don’t have to bother with the second hearing. 

State v. Stone 2012 Ohio 630  (excellent analysis of victim impact statement)

Defendant appeals from the Court’s consideration of a victim impact statement offered at sentencing when Defendant pled guilty to 1 count of Public Indecency.  Defendant was indicted on 1 count of Felony Disseminating Material Harmful to a Juvenile and later pled to a misdemeanor count of Public Indecency.  At sentencing pursuant to O.R.C. 2930.14(A) the court allowed a victim impact statement to be read by the victim’s mother.  (B) of the same section states, if statement includes new material facts “the court shall not rely on the new material facts unless it continues sentencing … or takes other appropriate action to allow the Defendant an adequate opportunity to respond.” 

DECISION:  Because counsel for Stone failed to object to the new information he waived his opportunity to object to the new information.  The Trial Court did allow Defendant an opportunity to respond by asking him if he had anything further and he declined to respond. 

MORAL OF THE STORY:  If you are surprised by sentencing by a victim’s advocates statement about anything object and ask for time to reevaluate the situation.  We are often in a position where we don’t know exactly what the victim’s advocate will say so object, object, object if you don’t like it. 

Weaver v. Double K Pressure Washing  2012 Ohio 631

Civil appeal that in my opinion is not worth mentioning. 

State v. Woodward  2012 Ohio 632  (jail time credit)

Appeal from guilty to plea to 1 count of Robbery and 1 count of Aggravated Burglary in one case and a subsequent guilty plea in two counts of Receiving Stolen Property in a second case.  The main issue for appeal is whether Defendant was given the proper amount of jail time credit.  Trial Court sentenced Defendant to 8 years on the Aggravated Burglary and 6 months on the Receiving to run consecutively for a total of 8 ½ years.  The Trial Court gave 114 days of jail time credit towards the Aggravated Burglary case.  Defendant contends that because he was in on bond on the Receiving Stolen Property case as well he should get double credit for the days that he was in jail on both cases.  The Ohio Supreme Court addressed this issue in State v. Fugate 117 Ohio St. 3d 261, “if a Defendant’s sentenced to consecutive prison terms for multiple charges, jail time credit is not applied to each and every prison term as it is for concurrent sentencing, but rather is applied but once. 

DECISION:  Defendant was given proper amount of credit.  Furthermore, Defendant and counsel failed to object to the jail credit so it is deemed waived.

MORAL OF THE STORY: Again if you don’t like the answer object to preserve the record.  If you don’t object it will probably be deemed waived. 

State v. Blocker  2012 Ohio 633  (Sex Offender pre-Bodyke case)

Appeal from trial court’s denial of Defendant’s motion to dismiss his conviction of 1^st degree felony Failure to Notify Change of Address due to sex offender requirements.  In 1988, Defendant was convicted by military tribunal of 2 counts of rape and 1 count of Sodomy while stationed in Germany.  Defendant was never classified as a sex offender but under the law at the time he was classified automatically by his conviction (register annually for 10 years upon release).  Defendant was released from prison in September 2008 and moved to Dayton, Ohio.  In 2007 the Adam Walsh Act replaced Megan’s law and Defendant was reclassified as a Tier III sex-offender (register every 90 days for life). 

State v. Bodyke The Ohio Supreme Court struck down the reclassification and reimposed the previous registration requirement ordered by the trial court or law at the time of the conviction.  In this case once a year for ten years, however if he changed his address he was required to notify the Sheriff 20 days prior to moving.  The penalty for Failure to Notify in 1988 was a 3^rd degree felony. 

DECISION:  Although Blocker is right his classification was wrong the facts still establish that he failed to Notify his change of address under his original classification.  However, this violation is not a first degree felony but is a third degree felony.  Remanded for resentencing. 

MORAL OF THE STORY:  Even if you win that the new law doesn’t apply if they proved you violated the old law you still lose. 

State v. Chaffin  2012 Ohio  634  (Defense wins on suppressino of photo lineup)

This is an excellent appeal handled by Robert Brenner (OACDL member) from a conviction and sentence for 1 count of Aggravated Robbery with a Deadly Weapon.  The main issue in this case is a 6 picture photo lineup showed to the alleged victim, Kelly, in this case.  Kelly was at home when he heard the sound of a saw and looked out the window to see a man near his wife’s truck.  He told his wife to call 911 and went to investigate with a gun.  Defendant confronted the individuals and one of the individuals ran and the other pulled a knife.  Kelly fired a warning shot and both individuals ran.  Police arrived and Kelly described two males white males with bald heads and dark clothing.  Later Kelly was shown two separate photo lineups containing six pictures each.  One lineup had a picture of Chaffin and one lineup had a picture of the co-defendant.  The Co-Defendant was identified but Kelly failed to identify Chaffin.  In fact Kelly identified someone else.  A few days later Officer provided a new lineup with six pictures containing a newer picture of Chaffin and five not fully bald men.  Kelly identified Chaffin.   Chaffin moved to suppress the lineup at trial which was overruled by the trial judge from the bench.  Chaffin’s appeals stating the photo array was unduly suggestive.

ANALYSIS:  “To warrant suppression of identification, the accused bears the burden of showing that the array was “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification” and that the identification itself was unreliable under the totality of the circumstances.”  Citing Manson v. Brathwaite (1977) 432 U.S. 98 and Neil v. Biggers (1972) 409 U.S. 188.

“When any of these systems of confrontation suggest, due to the manner or mode of their presentation, that one individual is more likely than others to be the perpetrator of the crime, that fact increases the likelihood of misidentification and violates the right to due process of law of a defendant.” 
Reliability of the testimony is the linchpin in determining its admissibility. 

MORAL OF THE STORY:  The case law and studies written on eye-witness identification is staggering especially when dealing with cross-racial lines.  Why we continue to rely as a society on this disproven method is saddening. 

Fifth Third Mtge Co. v. Bihn   2012 Ohio 637

Foreclosure appeal

In re J.H.-P  2012 Ohio  638

Another custody case where the losing party disagreed with the court.  Nothing worth noting in this case.

Easterling v. Ameristate Bancorp, Inc.  2012 Ohio 636

http://www.sconet.state.oh.us/rod/docs/pdf/2/2012/2012-ohio-636.pdf

Pro se appeal of a civil matter.  Nothing worth noting.

State v. Dewitt 2012 Ohio 635   (MERGER ISSUE or should have been at least)

Defendant appeals from his guilty plea and sentence to 1 count of Involuntary Manslaughter, 1 count of Aggravated Burglary, 1 count of Aggravated Robbery with a deadly weapon, 1 count of Felonious Assault with a deadly weapon and a 3 year mandatory Firearm Specification. 

August 20, 2009 Gulley was shot and killed when three men forced their way into his apartment.  Dewitt, Turner, and Moore all charged in the killing and robbery.  Dewitt and Turner all confessed to forcing their way into the apartment and stated that Moore shot Gulley in the head. 

Dewitt agreed to a plea deal to avoid a murder charge to plead guilty to 1 count of Involuntary Manslaughter, 1 count of Aggravated Robbery, 1 count of Felonious Assault, and the 3 year gun specification.  The deal included an agreed total sentence of 16-20 years in prison.  The Judge agreed and sentenced Dewitt to 16 years. 

Moore eventually agreed to a plea to an aggregate term of 8-12 years in prison.  Dewitt requested the trial court to sentence him to the range that Moore got based on that Moore was the shooter and is getting less time than he who was not the shooter.

Defendant appeals citing 4 errors:

1.       The Trial Court erred in not imposing a sentence that was consistent with sentences for similar crimes committed by similar offenders.

a.       OVERRULED- R.C. 2953.08(D)(1) “ A sentence is not subject to review under this section if the sentence is authorized by law, has been recommended jointly by the Defendant and the Prosecution in the case, and is imposed by a sentencing judge.”  Because Dewitt agreed to the sentence he is stuck with it. 

2.       Trial Court erred in not permitting shock incarceration or transitional control.

a.       Defendant is not eligible for shock incarceration or intensive prison program because it is a 1^st degree felony.  The court is required to make a specific finding of fact as to why he is not eligible if it denies eligibility but because he isn’t eligible because of the offense no harm no foul

b.      Defendant, however, is eligible for transitional control therefore the case is remanded to trial court for such findings.

3.       The Trial Court erred in failing to merge the counts.

a.       This may be true but because Defendant failed to object at plea or sentencing there is no record to establish whether in fact these are allied offenses of similar import.

4.       Jail Credit- this is unclear because no record was contained with the supplementation of the appeal.  Therefore overruled for now until a new appeal is filed. 

MORAL OF THE STORY:  The most important two things that come out of this is that merger continues to be ignored at the trial level.  Merger seems to have become a lot clearer in light of State v. Johnson from December 2010, but a year later I believe it is still not being argued enough.  Anytime a person is charged with more than one charge merger should always be analyzed with the client.  A client cannot make an informed decision about whether to go to trial or not if he doesn’t know the maximum and minimum mandatory possible penalties in all case.  Merger allows a person to know what the most likely maximum penalty is.  If you don’t make the record then the Court of Appeals CANT help you.  The second item is that the justice system isn’t always consistent or fair especially if you agree to a deal that turns out to be not so good after all.  Plea deals don’t come with gift receipts to return. 

To start my first substantive post I would like to share potentially one of the most informative youtube videos on the law and what not to do when dealing with the police.   This professor's discussion about what you say when the cop comes up to you and says "do you know how fast you were going?"  Think of the times that you were pulled over for speeding and the answer you probably gave.  This video will show you how to answer that. 

http://www.youtube.com/watch?v=6wXkI4t7nuc

Welcome to the Beck Law Office, L.L.C. blog.  The goal of this blog is to provide updates on case law from the 2nd district Court of Appeals for Ohio, The Ohio Supreme Court, The United States Supreme Court and any other area of law that I believe is important.  I would like this blog to give clients, potential clients, and friends an opportunity to keep informed about Beck Law Office, L.L.C..  If there are any topics you would like to see written about that are related to the law or Beck Law Office, L.L.C. please feel free to contact me at attycbeck@gmail.com