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 or 2006.

If you would like to receive a daily e-mail with same-day case updates, please join our Members-Only discussion list.  Not a member?  Join today!

February 13, 2008

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

TOPICS:
- Jury / Voir Dire
- Evidence / Manifest weight
- Sentencing
- Trip and Fall
- Due process / Ineffective Counsel
- Building and Zoning Code / Role of impartiality
- Community-control-violation
- Breach of Lease
- Divorce / Shared parenting / Motion for contempt
- Petition for postconviction relief
- Frivolous Appeal
- Motion to suppress evidence
- Dismissals without prejudice
- Pretrial detention
- Immigration / Motion to reconsider / Jurisdiction
- Telecommunications Act
- Writ of habeas corpus
 

Ohio Supreme Court

 

***See Supreme court of Ohio website ***
http://www.sconet.state.oh.us/rod/NEWPDF/default.asp
 

First District Court of Appeals

[Search Other Ohio Districts]
 

*** Judgment Entries ***

Yvonne Duhart, et al. vs. George Hill (February 13, 2008)
-  http://www.hamilton-co.org//cinlawlib/resources/cases/firstdistrict/2006/C-060762_02132008.pdf
-  George Hill rear-ended the car being driven by Yvonne Duhart. Pearlie Duhart was a passenger in Yvonne Duhart’s car. Prior to trial, Pearlie Duhart died of causes unrelated to the accident. After a trial on the issue of damages, the jury returned general verdicts of $5,000 and $1,000 in favor of Yvonne Duhart and the estate of Pearlie Duhart. Duhart filed a motion for a new trial, which the trial court overruled. Duhart argues that the trial court erred (1) in excluding the medical records of Pearlie Duhart, (2) in overruling Duhart’s objections to the seating of “insurance defense attorney Douglas May” as an alternate juror and in allowing May to be present in the jury room during the deliberations, (3) in “requiring” Yvonne Duhart to “read from the police accident report” over counsel’s objections, (4) in failing to give a jury instruction on acceleration or aggravation of a preexisting injury, and (5) in denying the motion for a new trial.  Judgment AFFIRMED.

State of Ohio vs. Shawn Vandunk (February 13, 2008)
-  http://www.hamilton-co.org//cinlawlib/resources/cases/firstdistrict/2006/C-061074_02132008.pdf
-  Vandunk appeals his convictions for felonious assault. Vandunk asserts that his conviction was against the manifest weight of the evidence. Judgment AFFIRMED.

State of Ohio vs. Robert Lee Williams (February 13, 2008)
-  http://www.hamilton-co.org//cinlawlib/resources/cases/firstdistrict/2006/C-061076_02132008.pdf
-  Williams was convicted of attempted abduction and menacing by stalking. Williams was sentenced to the maximum sentence for each offense, which was 18 months’ incarceration, and ordered that the sentences be served consecutively. He asserts that the trial court erred (1) by imposing maximum, consecutive sentences, (2) by imposing consecutive sentences when the court failed to advise him of this possibility at his plea hearing in violation of Crim.R. 11(C)(2), (3) that his plea was not entered knowingly, and (4) in allowing the state to amend the dates of the acts constituting the menacing-by-stalking offense as originally charged in the indictment. Judgment AFFIRMED.

Sharon Lombardi vs. Cincinnati Automobile Club, et al. (February 13, 2008)
-  http://www.hamilton-co.org//cinlawlib/resources/cases/firstdistrict/2006/C-061086_02132008.pdf
-  Plaintiff-appellant Sharon Lombardi appeals from the judgment entered by the trial court in favor of defendant-appellee, the city of Cincinnati, following a bench trial on her negligence claim. She contends that the following findings by the trial court were against the manifest weight of the evidence: (1) the defect in the sidewalk was both so large as to be open and obvious and so small as to be insubstantial; (2) there were no attendant circumstances bearing upon the issue of liability; and (3) the city did not have actual or constructive notice of the defect in the sidewalk. Judgment AFFIRMED.

State of Ohio vs. Jewell Gray (February 13, 2008)
-  http://www.hamilton-co.org/cinlawlib/resources/cases/firstdistrict/2006/C-061094_02132008.pdf
-  Gray pleaded guilty to voluntary manslaughter, aggravated robbery, and two accompanying gun specifications. Gray argues that his guilty plea was not made knowingly, intelligently, and voluntarily, and thus that the trial court denied him due process of law by accepting his guilty plea. He also, contends that he was denied the effective assistance of counsel when trial counsel failed to move for permission to withdraw the guilty plea upon learning that Gray did not understand the consequences of his plea. Judgment AFFIRMED.

State of Ohio vs. Robert Patterson (February 13, 2008)
-  http://www.hamilton-co.org/cinlawlib/resources/cases/firstdistrict/2007/C-070038_02132008.pdf
-  Patterson was convicted of two counts of felonious assault, two gun specifications, carrying a concealed weapon, and resisting arrest. Although Patterson had not previously been imprisoned, the trial court sentenced Patterson to more than the minimum prison term. The total aggregate sentence was to be eleven years’ incarceration. On appeal, we vacated Patterson’s sentence pursuant to State v. Foster2 and remanded the case to the trial court for resentencing. On remand, the trial court imposed the same sentence. Patterson now appeals this sentence, arguing in a single assignment of error that his sentence is unconstitutional and violates the rule of lenity. Judgment AFFIRMED.

State of Ohio vs. Antonio Bishop (February 13, 2008)
-  http://www.hamilton-co.org/cinlawlib/resources/cases/firstdistrict/2007/C-070146_02132008.pdf
-  Bishop was indicted for one count of murder with a gun specification and one count of having a weapon while under a disability. After a hearing, the court sentenced Bishop to consecutive prison terms of fifteen years to life for murder, three years for the gun specification, and five years for having a weapon while under a disability. He asserts that (1) the trial court erred when it denied his Crim.R. 29 motion for an acquittal because his convictions were based on insufficient evidence, and (2) that his convictions were against the manifest weight of the evidence. Judgment AFFIRMED.

State of Ohio vs. Oscar Ayers (February 13, 2008)
-  http://www.hamilton-co.org/cinlawlib/resources/cases/firstdistrict/2007/C-070146_02132008.pdf
-  Ayers was convicted, following a jury trial, of complicity to trafficking in cocaine within 1,000 feet of a school. The trial court sentenced Ayers to one year in prison and suspended his driver’s license for six months. Ayers now appeals, raising a sole assignment of error in which he claims that the state’s evidence was insufficient to support his conviction. Judgment AFFIRMED.

State of Ohio vs. Norman L. Lewis (February 13, 2008)
-  http://www.hamilton-co.org/cinlawlib/resources/cases/firstdistrict/2007/C-070179_02132008.pdf
-  Lewis appeals from the trial court’s order revoking his community control and sentencing him to thirty days in jail. Lewis argues that the trial court abused its discretion in revoking his community control and imposing a thirty-day jail sentence and that the trial court abandoned its role of impartiality. Judgment AFFIRMED.

State of Ohio vs. Edward A. Dixon (February 13, 2008)
-  http://www.hamilton-co.org/cinlawlib/resources/cases/firstdistrict/2007/C-070191_02132008.pdf
-  Dixon was convicted of complicity to aggravated robbery and robbery. Dixon contends that his convictions were against the weight and sufficiency of the evidence. Judgment AFFIRMED.

State of Ohio vs. Antoine Dubose (February 13, 2008)
-  http://www.hamilton-co.org/cinlawlib/resources/cases/firstdistrict/2007/C-070192_02132008.pdf
-  Dubose pleaded guilty to tampering with evidence and safecracking. Dubose was placed on community control for three years. He violated his community control and he was sentenced to five years for tampering with evidence and to eighteen months for safecracking, for an aggregate sentence of six and one-half years’ incarceration. He argues the sentences were contrary to law because they were excessive. Judgment AFFIRMED.

State of Ohio vs. Michael Milazzo (February 13, 2008)
-  http://www.hamilton-co.org/cinlawlib/resources/cases/firstdistrict/2007/C-070206_02132008.pdf
-  Michael Milazzo appeals his conviction for operating a motor vehicle while under the influence of alcohol (OMVI), in violation of R.C. 4911.19(A)(1). Milazzo asserts that he was denied the effective assistance of counsel when his trial counsel stipulated that Milazzo had been impaired by alcohol, thus relieving the state from the burden of proving this element of the OMVI offense at trial. Judgment AFFIRMED.

Cincinnati Metropolitan Housing Authority vs. Deborah Bohannon (February 13, 2008)
-  http://www.hamilton-co.org/cinlawlib/resources/cases/firstdistrict/2007/C-070239_02132008.pdf
-  Defendant-appellant Deborah Bohannon entered into a lease for subsidized rental housing with plaintiff-appellee Cincinnati Metropolitan Housing Authority (“CMHA”). CMHA filed a forcible-entry-and-detainer action against Bohannon, alleging unacceptable housekeeping practices in violation of paragraph 6, section I, and paragraphs 2 and 3, section P, of Part II of the residential lease. The trial court granted judgment for CMHA, finding that CMHA had proved that Bohannon had breached the terms of the lease by failing to eliminate clutter and by failing to keep her home free of roach infestation. Bohannon alleges that the trial court erred (1) in finding that CMHA had proved serious and repeated violations of the lease by Bohannon, (2) in basing Bohannon’s eviction on a ground that CMHA had not included in its notice of termination, and (3) disregarding and misconstruing certain evidence. Judgment AFFIRMED.

State of Ohio vs. Richard Mansfield (February 13, 2008)
-  http://www.hamilton-co.org/cinlawlib/resources/cases/firstdistrict/2007/C-070264_02132008.pdf
-  Mansfield appeals a conviction for escape under R.C. 2921.34(A). Mansfield contends that the trial court abused its discretion in imposing the maximum sentence and that he was denied the effective assistance of counsel. Judgment AFFIRMED.

Robyn M. Stayton vs. James H. Stayton (February 13, 2008)
-  http://www.hamilton-co.org/cinlawlib/resources/cases/firstdistrict/2007/C-070280_02132008.pdf
-  Pursuant to their 2000 divorce, the parties in this case entered into a separation agreement and a shared-parenting plan, both of which were incorporated into the decree. In 2005, plaintiff-appellant Robyn M. Stayton2 filed a motion to terminate the shared-parenting plan. The magistrate determined that the agreed entry abrogating the shared-parenting plan prevented a contempt finding. Robyn now argues that the trial court incorrectly dismissed her motion for contempt and that the trial court incorrectly broadened the language of the agreed entry. The Court of Appeals court holds that the trial court incorrectly concluded that James was no longer required to reimburse Robyn for the expenses that had accrued prior to the date of the July 17, 2006, agreed entry. The judgment of the trial court is reversed, and this case is remanded to the trial court for consideration of the merits of Robyn’s motion for contempt.

State of Ohio vs. Lamont Smith (February 13, 2008)
-  http://www.hamilton-co.org/cinlawlib/resources/cases/firstdistrict/2007/C-070301_02132008.pdf
-  Smith challenges the common pleas court’s judgment denying his R.C. 2953.21 petition for postconviction relief. Judgment AFFIRMED.

In Re: Raysean J. Johnson (a minor child) (February 13, 2008)
-  http://www.hamilton-co.org/cinlawlib/resources/cases/firstdistrict/2007/C-070303_02132008.pdf
-  Johnson was adjudicated delinquent for committing acts that would have constituted aggravated robbery with a firearm specification if committed by an adult. Johnson’s counsel now asks this court to conduct an independent review of the record to determine whether the proceedings below were free from prejudicial error. He has also filed a motion to withdraw as Johnson’s counsel. We find the appeal to be frivolous under App.R. 23 and R.C. 2505.05. Judgment AFFIRMED and counsel's motion to withdraw OVERRULED.

State of Ohio vs. Alvin Osborne (February 13, 2008)
-  http://www.hamilton-co.org/cinlawlib/resources/cases/firstdistrict/2007/C-070406_02132008.pdf
-  Osborne appeals his conviction for posseiolation of R.C. 2925.11(A). The trial court sentenced Osborne to three years of community control. Osborne argues that the trial court erred in denying his motion to suppress evidence. Judgment AFFIRMED.
 

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

 

Dearth v. Mukasey (February 13, 2008) (Appeal from  S.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0071p-06.pdf
-  Plaintiffs Stephen Dearth and the Second Amendment Foundation appeal the venue-based dismissal-without-prejudice of their action. The plaintiffs had brought suit in federal court in Ohio to enjoin the enforcement of the provisions of 18 U.S.C. § 922 that prohibit non-residents of the United States from receiving or selling firearms for non-sporting purposes. Because the plaintiffs requested the dismissal-without-prejudice as an alternative to transfer, however, the district court’s order is an unappealable voluntary dismissal. We therefore dismiss the appeal.

USA v. Goins (February 13, 2008) (Appeal from  N.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0074p-06.pdf
-  In this case we are asked to decide as a matter of first impression whether pretrial detention with respect to an indictment that later yields a conviction tolls the running of a period of supervised release under 18 U.S.C. § 3624. This is a difficult and close case, but today we part ways with the Ninth Circuit and hold that when a defendant is held for thirty days or longer in pretrial detention, and he is later convicted for the offense for which he was held, and his pretrial detention is credited as time served toward his sentence, then the pretrial detention is “in connection with” a conviction and tolls the period of supervised release under § 3624.
 

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

 

Li v. Mukasey (February 13, 2008) (Appeal from Immigration & Naturalization Service )
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0070p-06.pdf
-  Petitioner, a native and citizen of China, seeks review of the Board of Immigration Appeals’ (“BIA”) decision denying her second motion to reopen removal proceedings. The government argues that we lack jurisdiction over the petition for review because, subsequent to its filing with this court, the BIA granted Petitioner’s motion to reconsider and released a new opinion addressing the arguments raised in Petitioner’s second motion to reopen. Petitioner has not sought review of the BIA’s new decision nor has she replied to the government’s jurisdictional argument. For the reasons stated below, we agree with the government and DISMISS the petition for lack of jurisdiction.

Quick Communications v. MI Bell Tele Co  (February 13, 2008) (Appeal from  E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0072p-06.pdf
-  The Michigan Public Services Commission ordered Quick Communications Incorporated and Michigan Bell Telephone Company (d/b/a AT&T) to amend their interconnection agreement to conform with the Commission’s most recently approved service rates. Quick brought suit seeking declaratory and injunctive relief, arguing that the Telecommunications Act of 1996, the terms of the interconnection agreement, the Sierra-Mobile doctrine, and the Contract Clause of the United States Constitution prohibited the Commission’s action. The district court granted defendants’ motion for summary judgment on all of Quick’s claims. Quick now appeals.

Eady v. Morgan (February 13, 2008) (Appeal from  E.D. TN)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0073p-06.pdf
-  Mr. Ernest B. Eady appeals the judgment of the district court denying his petition for a writ of habeas corpus under 28 U.S.C. § 2254. Mr. Eady was convicted of second degree murder in Tennessee state court. He argues that he was entitled to a writ of habeas corpus because there was insufficient evidence to support his conviction and because his counsel had provided ineffective assistance on direct appeal. Both his claims are based on the fact that, subsequent to his conviction, Tennessw regarding the scienter required for second degree murder was clarified. Prior to his conviction, Tennessee state law allowed a person to be convicted for second degree murder if that person was aware of the nature of his conduct or if that person was aware that his conduct was reasonably certain to cause death. Mr. Eady’s jury was instructed consistent with this definition. It is now clear that, to be convicted of second degree murder under Tennessee law, a person must be aware that the nature of his conduct is reasonably certain to result in death. Mr. Eady asserts that there was insufficient evidence to prove this scienter, and that, on direct appeal, his appellate counsel should have argued for a new trial on the basis that his trial jury had been improperly instructed. The Tennessee Court of Criminal Appeals ruled against Mr. Eady on both issues on state post-conviction review. The district court similarly found Mr. Eady’s arguments unpersuasive, and accordingly denied Mr. Eady’s petition. Upon review, we conclude that the district court was correct, and we accordingly affirm the district court’s judgment and deny Mr. Eady’s petition.
 

Daily Case Updates