Daily Case Update Archive

As a service to our members, we monitor opinions issued from the Ohio Supreme Court, the Ohio State First District Court of Appeals, and the United States Sixth Circuit Court of Appeals.  You can read the latest summaries or archived summaries from 2005 , 2006 , 2007 , 2008 , 2009 , 2010 , 2011.

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June 11 & 12, 2008

Ohio Supreme Court | Ohio First District | U.S. 6th Circuit - Ohio | U.S. 6th Circuit - Other States
 

TOPICS:
- Writ of procedendo
- Criminal law * Allied offenses of similar import
- Motion for reconsideration
- Attorney Misconduct
- Temporary total disability compensation
- Child-victim-oriented offender classification
- Evidence / Self-defense
- Qualified Expert Witness 
- Breach of contract / Pierce the corporate veil / Promissory or equitable estoppel
- Sexual imposition / Evidence sufficiency
- Zoning / Mining / Nonconforming-use
- Postconviction petition
- Notice of appeal / Procedures /  Transcript
- Motion for relief from judgment / Time limitation
- Evidence / New Trial
- Assault / Anders v. California
- Domestic Relations / Servicemembers’ Civil Relief Act / Jurisdiction
- Community control violation
- Bankruptcy / Vehicle ownership expense deduction
 

Ohio Supreme Court

 

State v. Pierce (Slip Opinion)(June 11, 2008)(2008-Ohio-2699)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-2699.pdf
-  Motion for reconsideration granted in part.
 
State v. Aleshire (Slip Opinion)(June 11, 2008)(2008-Ohio-2700)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-2700.pdf
-  Motion for reconsideration granted.
 
State v. Cody (Slip Opinion)(June 11, 2008)(2008-Ohio-2701)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-2701.pdf
-  Discretionary appeal accepted and cause remanded for application of State v. Cabrales.
 
State ex rel. George v. Burnside (Slip Opinion)(June 11, 2008)(2008-Ohio-2702)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-2702.pdf
-  Appeal from judgment denying writ of procedendo to compel a common pleas court judge to issue findings of fact and conclusions of law * Court of appeals’ denial of writ affirmed.
 
Dayton Bar Assn. v. Randall (Slip Opinion)(June 12, 2008)(2008-Ohio-2709)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-2709.pdf
-  Attorneys at law*Misconduct*Conduct prejudicial to the administration of justice*Conduct adversely reflecting on fitness to practice law*Neglect of entrusted legal matters*Failure to cooperate in disciplinary investigation*Indefinite suspension.
 
State ex rel. Valley Interior Sys., Inc. v. Indus. Comm. (Slip Opinion)(June 12, 2008)(2008-Ohio-2703)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-2703.pdf
-  Temporary total disability compensation * Failure to notify employee of consequences of absence * Court of appeals' judgment affirmed.
 
Toledo Bar Assn. v. Mason (Slip Opinion)(June 12, 2008)(2008-Ohio-2704)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-2704.pdf
-  Attorneys at law * Misconduct * Disbarment.
 

First District Court of Appeals

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*** Judgment Entries ***
 
State of Ohio vs. Bryan Lee (June 11, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-060281_06112008.pdf
-  Bryan Lee was convicted of criminal child enticement in violation of R.C. 2905.05(A), a felony of the fifth degree. Lee argues (1) the sufficiency and weight of the evidence, (2) his conviction violated his due-process rights, (3) the trial court erred by classifying him as a child-victim-oriented offender, and (4) his trial counsel was ineffective. Judgment AFFIRMED.
 
State of Ohio vs. Kevin Pryor (June 11, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070108_06112008.pdf
-  Defendant-appellant Kevin Pryor, a 17-year-old, shot David Presley in the back of the head, killing him. Pryor was tried before a jury and found guilty of two counts of murder and one count of tampering with evidence, all with firearm specifications. Pryor’s two assignments of error allege that the resulting convictions were based upon insufficient evidence and were against the manifest weight of the evidence. Pryor argues that he proved he had killed Presley in self-defense. Judgment AFFIRMED.
 
State of Ohio vs. Donald L. Williams (June 11, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070243_06112008.pdf
-  Donald Williams appeals his convictions for operating a motor vehicle while under the influence of alcohol, or a drug of abuse, or a combination of them, and for operating a vehicle without reasonable control. Williams now challenges the state’s use of Sergeant Denney as an expert, arguing that he was not qualified to opine on Williams’s drug-intoxication level at the time of the accident. Judgment AFFIRMED.
 
State of Ohio vs. Maureen Moss (June 11, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070353_06112008.pdf
-  Moss was convicted of misdemeanor child endangering in violation of R.C. 2919.22(A) and possession of marijuana in violation of Cincinnati Municipal Code 910-23. Moss now challenges the weight and sufficiency of the evidence to support her convictions. Judgment AFFIRMED.
 
J.S. Productions, Inc. vs. MTS Restaurants, LLC, et al. (June 11, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070430_06112008.pdf
-  JSP sued MTS, Snarr, and Thoma (collectively referred to as “the sellers”) for breach of contract (the brokerage agreement), promissory or equitable estoppel, unjust enrichment, quantum merit, fraud, and civil conspiracy. JSP also alleged that Snarr and Thoma were the “alter ego” of MTS, attempting to pierce the corporate veil of MTS. JSP also sued Jablonsky and David for breach of contract (the noncircumvention agreement), promissory estoppel, unjust enrichment, quantum merit, fraud, and conspiracy. David filed a motion to dismiss, and the remaining parties filed cross-motions for summary judgment. The trial court dismissed JSP’s complaint against David and entered summary judgment in favor of the sellers and Jablonsky. The court also denied JSP’s motions for summary judgment against the sellers, Jablonsky, and David. On appeal, JSP now raises five assignments of error. Judgment AFFIRMED.
 
State of Ohio vs. Timothy Williams (June 11, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070459_06112008.pdf
-  Williams was convicted of sexual imposition, in violation of R.C. 2907.06(A)(4). In a single assignment of error, he now challenges the weight and sufficiency of the evidence supporting the conviction. Judgment AFFIRMED.
 
Cincinnati Incorporated, et al. vs. Hamilton County Board of Zoning Appeals, et al. (June 11, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070477_06112008.pdf
-  On May 2, 2006, a zoning inspector issued Hanson a notice of violation, noting that any “expansion” of the nonconforming use required approval from appellee Hamilton County Board of Zoning Appeals (“BZA”). The Hamilton County Zoning Services Administrator (“Administrator”) reviewed the matter. The Administrator determined that there had been no lapse in Hanson’s mining activity, and that, therefore, the move to mine a greater portion of the property on the west side of Dry Fork Road did not constitute an expansion of a nonconforming use. The Administrator rescinded the notice of violation. Appellants Cincinnati Incorporated (“CI”) and Dry Fork Farms, LLC. (“DFF”), owners of parcels on the west side of Dry Fork Road abutting Hanson’s lots 10 and 38, appealed the Administrator’s action to the BZA. The sole assignment of error alleges that the trial court erred in sustaining Hanson’s objections, overruling the objections of CI and DFF, and adopting the magistrate’s decision. A review of the record shows that the BZA’s decision was supported by substantial, reliable, and probative evidence, and the trial court did not err in affirming it. Judgment AFFIRMED.
 
State of Ohio vs. David Foster (June 11, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070518_06112008.pdf
-  Foster appeals the Hamilton County Common Pleas Court’s judgment denying his postconviction petition. Judgment AFFIRMED.
 
Connie Hall vs. Allison Beer (June 11, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070576_06112008.pdf
-  Hall contests the denial of summary judgment on her claims for personal injury caused by the negligent driving of defendant-appellee, Allison Beer. Hall also contests the trial court’s denial of her motions for judgment notwithstanding the verdict (“JNOV”) and for a new trial made after a jury trial. The obligation to provide a record that demonstrates the error complained of remains with the appellant at all times in an appeal, even when an appellant seeks review of post-trial motions. Judgment AFFIRMED.
 
Constance Cornett vs. Steven Cornett (June 11, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070625_06112008.pdf
-  Constance Cornett (“Cornett”) appeals the trial court’s denial of her Civ.R. 60(B)(5) motion to set aside an October 2005 order dismissing her motion regarding Steven Cornett’s payment of child support for the parties’ son. The trial court denied the motion, holding that it was untimely filed. Judgment AFFIRMED.
 
State of Ohio vs. Harouna Konate (June 11, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070651_06112008.pdf
-  Konate was indicted for eighteen counts of identity fraud, ten counts of misuse of a credit card, and one count of engaging in a pattern of corrupt activity. The trial court sentenced Konate to ten years in prison. Konate’s appointed counsel, pursuant to Anders v. California, states in his brief that he has found no errors in the proceedings below, and he has filed a motion to withdraw as counsel. Counsel's motion is withdraw is OVERRULED and judgment AFFIRMED.
 
State of Ohio vs. William Fields (June 11, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070654_06112008.pdf
-  Fields was convicted upon guilty pleas to possession of crack cocaine, an accompanying firearm specification, and having a weapon under a disability. He unsuccessfully challenged his convictions in a direct appeal and in a postconviction petition. Fields filed with the common pleas court a motion under Crim.R. 33 and Crim.R. 32.1, seeking a “New Trial Based Upon * * * Newly Discovered Evidence [or] Withdrawal of [his] Guilty Plea[s].” The court overruled the motion, and Fields now appeals. Judgment AFFIRMED.
 
State of Ohio vs. James Toran (June 11, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070668_06112008.pdf
-  Following the denial of his motion to suppress, defendant-appellant James Toran entered a plea of guilty to trafficking in cocaine, a first-degree felony, and assault, a fourth-degree felony. Toran and the state requested that the trial court impose an agreed sentence of four years’ imprisonment. After accepting Toran’s guilty plea, the trial court continued the case for sentencing. Prior to sentencing, Toran filed a motion to withdraw his guilty plea. The trial court denied Toran’s motion and imposed the agreed sentence of four years’ imprisonment. This sentence included four years of imprisonment for trafficking in cocaine and one year of imprisonment for assault, to be served concurrently. Consequently, counsel has filed a motion to withdraw as counsel pursuant to Anders, and she now asks us to review the record independently. The court holds that it is free from prejudicial error and that it contains no grounds to support a meritorious appeal. Counsel's motion is withdraw is OVERRULED and judgment AFFIRMED.
 
State of Ohio vs. Antonio Colbert (June 11, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070677_06112008.pdf
-  Colbert appeals his conviction for assault in violation of 2903.13. Counsel requests that this court independently examine the record to determine whether the appeal is wholly frivolous. Counsel's motion is withdraw is OVERRULED and judgment AFFIRMED.
 
Christopher M. Johnson vs. Elizabeth N. Johnson (June 11, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070678_06112008.pdf
-  Christopher Johnson is a member of the United States Army and was stationed in Iraq. Elizabeth Johnson had custody of their son, Cayden Johnson. At a hospital visit, a doctor noticed bruising on Cayden’s buttocks. Cayden was first placed with Elizabeth’s parents; later, he lived with Christopher’s mother. Christopher returned from Iraq on an emergency leave. He requested, and the trial court ex parte granted, a petition for a temporary domestic-violence civil protection order against Elizabeth on Cayden’s behalf. But six days before the continued date for the hearing, Christopher moved to stay the proceedings under the federal Servicemembers’ Civil Relief Act (“SCRA”). The effect of the stay was to keep the temporary protective order in place, leaving Cayden to live with Christopher’s mother. Elizabeth now appeals, arguing that the trial court erred by leaving the ex-parte custody order in place and granting a stay because the trial court had not allowed Elizabeth the opportunity to present her case. There is nothing that this court can do to give Cayden or Elizabeth relief. Judgment AFFIRMED.
 
State of Ohio vs. Brian E. Barrett (June 11, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070704_06112008.pdf
-  Brian Barrett pleaded guilty to vehicular assault. At sentencing, the trial court placed Barrett on community control for five years and warned him that if he violated the terms of his community control, it would impose an 18-month prison term. He violated his community control and the trial court imposed the promised 18-month prison sentence. He argues that the trial court’s decision to revoke his community control was not supported by substantial evidence and the trial court abused its discretion. Judgment AFFIRMED.
 

U.S. Sixth Circuit Court of Appeals:  Ohio Cases

 

No Opinions.
 

U.S. Sixth Circuit Court of Appeals: Other States Cases

 

In re: Ralph Kimbro v. (June 12, 2008)(Appeal from U.S. Bankruptcy Court - Nashville)
-  http://www.ca6.uscourts.gov/opinions.pdf/08b0009p-06.pdf
-  This appeal requires the Panel to decide whether in the means test of 11 U.S.C. § 707(b)(2)(A)(ii)(I), a debtor may deduct an “ownership expense” for a vehicle that is subject to neither secured debt nor a lease. For the reasons stated herein, the Panel concludes that the debtor is entitled to that expense deduction and affirms the decision of the bankruptcy court.