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.

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March 31- April 4, 2008

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

TOPICS:
- Attorneys * Misconduct
- Criminal law * Double jeopardy
- Taxation * Real property
- Appellate procedure / Time for appeal
- Habeas corpus
- Election
- Breach of contract
- Workers’ compensation
- Sexual predator
- Menacing by stalking / Maximum penalty
- Evidence / Insufficient / Ineffective counsel
- Damages / Award
- Frivolous Appeal
- Damages / Attorney Fees
- Juries / Contempt / Procedure
- Age Discrimination in Employment Act
- Racketeer Influenced and Corrupt Organizations Act / Sentencing
- Federal Rules of Criminal Procedure
- Equal Employment Opportunity Commission
- National Labor Relations Act
- Tenn. Surveillance Act
- Jury Instruction / Expert witness
- Tennessee Human Rights Act
- Search & seizure
 

Ohio Supreme Court

 

Disciplinary Counsel v. Tomlan (Slip Opinion) (April 3, 2008) (2008-Ohio-1471)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-1471.pdf
-  Attorneys * Misconduct * Accepting employment when professional judgment reasonably may be affected by financial or personal interest * Conduct adversely reflecting on fitness to practice law * Suppressing evidence that lawyer has legal obligation to reveal * Engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation * Indefinite suspension.
 
State v. Fairbanks (Slip Opinion) (April 3, 2008) (2008-Ohio-1470)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-1470.pdf
-  Criminal law * Double jeopardy * R.C. 4511.20 * R.C. 2921.331 * Conviction for failure to comply with police officer’s signal to stop, with specification that operation of vehicle caused substantial risk of serious harm, is not barred by a prior conviction for reckless operation under R.C. 4511.20 arising from same incident.
 
Disciplinary Counsel v. Higgins (Slip Opinion) (April 3, 2008) (2008-Ohio-1509)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-1509.pdf
-  Attorneys at law*Misconduct*Practicing law while under suspension*Failure to cooperate in disciplinary investigation*Multiple additional ethical violations*Indefinite suspension.
 
Disciplinary Counsel v. Ita (Slip Opinion) (April 3, 2008) (2008-Ohio-1508)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-1508.pdf
-  Attorneys at law*Misconduct*Conduct prejudicial to the administration of justice*Handling a legal matter without adequate preparation*Public reprimand.
 
State ex rel. Pilkington N. Am., Inc. v. Indus. Comm. (Slip Opinion) (April 3, 2008) (2008-Ohio-1506)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-1506.pdf
-  Workers’ compensation*Occupational disease*Last-injurious-exposure rule*Liability of successor to self-insured employer.
 
Cummins Property Servs., L.L.C. v. Franklin Cty. Bd. of Revision (Slip Opinion) (April 3, 2008) (2008-Ohio-1473)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-1473.pdf
-  Taxation * Real property * Valuation * R.C. 5713.03 * Recent, arm’s-length sale between willing buyer and willing seller establishes true value of real property.
 
In re Application of Sherman (Slip Opinion) (April 3, 2008) (2008-Ohio-1472)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-1472.pdf
-  Attorneys * Character and fitness * Applicant failed to appear for proceedings to complete character-and-fitness review * Applications to register as a candidate for admission to the bar and to take the bar examination disapproved.
 
State ex rel. Sautter v. Grey (Slip Opinion) (April 2, 2008) (2008-Ohio-1444)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-1444.pdf
-  Appellate procedure*Time for appeal when notice of appealable judgment lacking*Civ.R. 58*Tolling provision of App.R. 4(A) inapplicable to appeals from courts of appeals to Supreme Court*Court of appeals must reissue judgment.
 
Keith v. Bobby (Slip Opinion) (April 2, 2008) (2008-Ohio-1443)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-1443.pdf
-  Habeas corpus * Sentences not void * Incarceration for multiple crimes * adequate remedy by appeal * writ denied.
 
Squire v. Geer (Slip Opinion) (April 2, 2008) (2008-Ohio-1432)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-1432.pdf
-  Election contest * Voting irregularities * Uncertified voting system * Contester failed to prove by clear and convincing evidence that election irregularities affected enough votes to make uncertain the election result.
 
State ex rel. Fontanella v. Kontos (Slip Opinion) (April 2, 2008) (2008-Ohio-1431)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-1431.pdf
-  Mandamus * Procedendo * Writs sought to compel common pleas court judge to rule on motions in action for breach of contract * Court of appeals’ denial of writs affirmed.
 
State ex rel. L.P. Cavett Co. v. Indus. Comm. (Slip Opinion) (April 2, 2008) (2008-Ohio-1430)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-1430.pdf
-  Workers’ compensation * Compensation for temporary total disability * Physician’s report attributing psychological condition to industrial accident sufficient evidence of disability.
 
State v. Mercier (Slip Opinion) (April 2, 2008) (2008-Ohio-1429)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-1429.pdf
-  Court of appeals’ judgment affirmed on the authority of Wyoming v. Houghton.
 
State v. Pierce (Slip Opinion) (April 2, 2008) (2008-Ohio-1428)
-  http://www.sconet.state.oh.us/rod/docs/pdf/0/2008/2008-ohio-1428.pdf
-  Appeal dismissed as improvidently accepted.
 

First District Court of Appeals

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*** Judgment Entries ***
 
State of Ohio vs. Robin Schaefer-Kraft (April 2, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-060979_04022008.pdf
-  Schaefer-Kraft was indicted for six counts of rape, three counts of attempted rape, three counts of felonious assault, and four counts of endangering children. The trial court adjudicated her a sexual predator and imposed a ten-year prison term for each count of rape and a five-year prison term for each count of child endangering. Schaefer-Kraft raises four assignments of error, arguing that (1) her trial counsel was ineffective; (2) her plea was involuntary; (3) her motion to suppress was improperly denied; and (4) her sentence was unconstitutional. Judgment AFFIRMED.
 
State of Ohio vs. Paul Schmitt (April 2, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070230_04022008.pdf
-  Schmitt appeals the judgments of the Hamilton County Municipal Court convicting him of menacing by stalking and violating a protection order. Schmitt argues that the conviction for violating the protection order was based on insufficient evidence and was against the manifest weight of the evidence. Schmitt contends that the trial court erred in failing to inform him of the effect of the no-contest plea on the menacing-by-stalking charge. We affirm the judgment of the trial court in the case numbered C-070231. In the case numbered C-070230, we reverse the trial court’s judgment, vacate the plea of no contest, and remand the cause for further proceedings consistent with this judgment entry.
 
State of Ohio vs. Khalem Waver (April 2, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070245_04022008.pdf
-  Waver appeals his convictions for assault and trafficking in cocaine. Waver has advanced no assignments of error in the appeal numbered C-070245, which is related to his assault conviction. We therefore dismiss that appeal. His assignments of error in the case numbered C-070246 have no merit, and we therefore affirm the judgment of the trial court in that case.
 
Clay B. Taylor vs. Levie Smith (April 2, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070330_04022008.pdf
-  Taylor filed suit against his former landlord, Levie Smith.  Taylor has appealed from the trial court’s decision. He asserts one assignment of error arguing that the trial court’s judgment was in error. Judgment AFFIRMED.
 
State of Ohio vs. Michael Harrell (April 2, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070339_04022008.pdf
-  As part of a plea agreement, defendant-appellant, Michael Harrell, pleaded guilty to one count of theft from an elderly or disabled adult, one count of breaking and entering, and one count of robbery. The trial court sentenced him to serve a total of three years’ incarceration. Harrell’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. We find the appeal to be frivolous under App.R. 23 and R.C. 2505.35, but refrain from taxing costs and expenses against Harrell because he is clearly indigent.
 
Mill Valley LLC vs. Karen Foeller Marler (April 2, 2008)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070350_04022008.pdf
-  Karen F. Marler appeals the trial court’s judgment in favor of her landlord, Mill Valley LLC, for $165,768.26. Marler filed objections to the magistrate’s decision. The trial court overruled the objections and entered judgment in favor of Mill Valley for $165,768.26. In its judgment, the court did not address the outstanding motions for attorney fees and costs and did not include, pursuant to Civ.R. 54(B), an express determination that there was no just reason for delay. Judgment not final and appealable and is dismissed.
 
*** Opinions ***
 
State of Ohio vs. Lonnie Webster (April 4, 2008)(2008-Ohio-1636)
-  http://www.sconet.state.oh.us/rod/docs/pdf/1/2008/2008-ohio-1636.pdf
-  The trial court did not err in denying the defendant’s motion for separate trials for offenses arising out of three incidents: The evidence for each offense was separate and distinct; and evidence of any one offense would have been admissible under Evid.R. 404(B) in the trial of any other offense to prove the defendant’s identity as the person responsible for committing the crimes. The trial court did not err in denying a mistrial based on juror misconduct: the juror who had been involved in outside communications was eventually dismissed, and the substance of the outside communication was never revealed to the remaining jurors. The trial court did not abuse its discretion in finding the defendant guilty of contempt for his outbursts during sentencing: the verbal onslaught occurred before the court had finished its mandatory recitation of the defendant’s appellate rights, disrupted the proceedings, and constituted a threat to the administration of justice. Judgment AFFIRMED.
 

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

 

Fulton v. Moore (April 1, 2008)(Appeal from S.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0134p-06.pdf
-  Petitioner George Fulton appeals the district court’s denial of his application for habeas corpus under 28 U.S.C. § 2254. His habeas claim of double jeopardy stems from the Clermont County, Ohio trial court’s sua sponte declaration of a mistrial after a jury was impaneled but before opening arguments in his criminal trial. The mistrial was ordered when, after the prosecution’s amendment of dates in the indictment, Fulton’s counsel requested a continuance of an uncertain length. Fulton’s second trial was to the bench and resulted in a conviction on charges of gross sexual imposition and rape, followed by the imposition of a life sentence. Because the requisite high degree of necessity existed for the mistrial, we hold that Fulton’s Fifth Amendment guarantee against double jeopardy was not violated. The district court is affirmed.
 
Yeschick v. Mineta (April 1, 2008)(Appeal from N.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0135p-06.pdf
-  Plaintiff-Appellant Gary D. Yeschick brought suit against Defendant-Appellee Norman Y. Mineta, the former Secretary of the United States Department of Transportation,1 who oversees operations of the Federal Aviation Administration (“FAA” or “Agency”), alleging that the FAA failed to rehire him due to his age in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (“ADEA” or “Act”). Pursuant to 29 C.F.R. § 1614.105, an applicant for federal employment claiming discrimination under the ADEA must consult the agency’s Equal Employment Opportunity (“EEO”) counselor within forty-five days of the alleged discriminatory act. The district court, granting summary judgment in favor of the FAA, found that because the FAA labeled Yeschick’s application as “inactive” in 2000, and because Yeschick did not contact the EEO counselor until 2002, Yeschick failed to meet this administrative requirement. We conclude that there is a genuine issue of material fact as to whether Yeschick was an active applicant when he contacted the EEO counselor in 2002, and we therefore REVERSE the judgment of the district court and REMAND the case for further proceedings.
 
USA v. Gray AND
USA v. Jackson (April 2, 2008)(Appeal from N.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0136p-06.pdf
-  In these consolidated appeals, defendants Nathaniel Gray and Gilbert Jackson appeal their jury trial convictions on multiple counts of violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(d); conspiracy to obstruct and obstruction of interstate commerce by extortion in violation of the Hobbs Act, 18 U.S.C. § 1951; and “honest services” mail and wire fraud, in violation of 18 U.S.C. §§ 1341, 1343, and 1346. Gray also pleaded guilty to one count of income tax evasion, 26 U.S.C. § 7201. Defendants’ convictions stem from their alleged schemes to procure government contracts for corporate clients and financial gains for themselves by illicitly providing money and gifts to public officials in exchange for political influence in the bid for municipal contracts. The paramount common issue raised by both defendants is whether certain evidence obtained through court-authorized electronic surveillance pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (“Title III” or “the Act”), 18 U.S.C. §§ 2510-22, was properly admitted at trial and, concomitantly, whether the district court abused its discretion by refusing to require disclosure of certain illegally intercepted conversations of defendants. Jackson and Gray also challenge the viability of their Hobbs Act convictions in light of our recent decision in United States v. Brock, 501 F.3d 762 (6th Cir. 2007). In addition, defendants raise numerous other issues in these appeals, including, inter alia, challenges to the sufficiency of the evidence; the district court’s denial of motions for severance, continuance, and mistrial; prosecutorial misconduct; claims of error in jury instructions; and cumulative error. Gray also appeals his sentences imposed under the advisory Guidelines. For the reasons stated below, we reverse Gray’s convictions on Counts 30, 31, and 41 of the superseding indictment but affirm his convictions and sentences on all remaining counts. With regard to Jackson, we reverse his conviction on Count 41 but conclude that the remainder of his assignments of error are without merit and affirm his convictions on all other counts. Accordingly, we affirm in part, reverse in part, and remand these cases to the district court for resentencing consistent with this opinion.
 
USA v. Page (April 3, 2008)(Appeal from N.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0137p-06.pdf
-  Michael A. Page pled guilty to one count of conspiracy to import cocaine and marijuana, in violation of 21 U.S.C. §§ 952(a), 960(a)(1) and 963. The district court sentenced him to 204 months, within the recommended guidelines range of 168-210 months’ incarceration. Page now appeals his conviction, arguing that the district court violated Federal Rule of Criminal Procedure 11(b)(1)(G) by not informing him of, and making sure he understood, the nature of the charge to which he pled guilty. Because we find the district court adequately ensured that Page understood the nature of the charge to which he pled guilty, we AFFIRM Page’s conviction.
 

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

 

Thompson v. North Amer Stainless (March 31, 2008) (Appeal from E.D. KY)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0129p-06.pdf
-  Shortly after Appellant Eric Thompson’s fiancée filed a discrimination charge with the EEOC against their common employer, the Appellee, Thompson was terminated. The parties to this appeal ask whether the anti-retaliation provisions in Title VII of the Civil Rights Act protect a related or associated third party from retaliation under such circumstances. We hold that that they do, and REVERSE the district court’s grant of summary judgment to the employer.
 
Delmas Conley v. NLRB  (March 31, 2008) (Appeal from National Labor Relations Board )
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0130p-06.pdf
-  Delmas Conley, doing business as Conley Trucking, petitions for review of a decision of the National Labor Relations Board (NLRB) that affirmed an administrative law judge’s ruling that the petitioner had engaged in various unfair labor practices. The Board has also filed an application with the court seeking enforcement of that decision. In an opinion that was adopted in all substantive respects by the NLRB, the administrative law judge concluded that Conley Trucking violated provisions of the National Labor Relations Act, 29 U.S.C. §§ 151 - 169. Specifically, the administrative law judge determined that the company violated the Act by discharging an employee who supported unionization, by creating the impression that employees’ union activities were being monitored, and by threatening various adverse consequences if unionization of the company were to occur. Before this court, Conley Trucking asserts that two of the five unfair labor practices found by the Board cannot be sustained because the administrative law judge improperly relied upon hearsay evidence in reaching those conclusions and that, without consideration of the hearsay, substantial evidence does not exist in the record to support the Board’s decision. For the reasons discussed below, however, we conclude that there is substantial evidence to support the Board’s decision and, therefore, grant the request for enforcement of its administrative order against Conley Trucking and deny the company’s petition for review.
 
Doe v. Bredesen (March 31, 2008) (Appeal from E.D. TN)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0131p-06.pdf
-  The Tennessee Serious and Violent Sex Offender Monitoring Pilot Project Act (the “Surveillance Act”), TENN. CODE ANN. § 40-39-301 et seq., imposes retroactively a requirement that all convicted sex offenders not only register with the Tennessee sexual offender registry, but also wear a relatively large device (a global positioning system, “G.P.S.”) at all times. The question at hand was whether the required technology under the Surveillance Act violates the Ex Post Facto Clause.
 
USA v. Martin (March 31, 2008) (Appeal from W.D. KY)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0132p-06.pdf
-  The principal issue in this appeal is whether the district court’s permitting a police officer to testify as both an expert and a fact witness, without the court’s issuing a cautionary instruction to the jury, constitutes reversible error, pursuant to United States v. Lopez-Medina, 461 F.3d 724 (6th Cir. 2006). Because we find that it does not, and because the appellant’s other arguments lack merit, we AFFIRM the district court’s judgment.
 
Cline v. BWXT Y-12, LLC (April 1, 2008) (Appeal from E.D. TN)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0133p-06.pdf
-  Royal Cline challenges a decision rejecting his state-law, age discrimination claims as a matter of law. One of Cline’s claims is barred by the statute of limitations, and another claim fails because the company offered a nondiscriminatory, non-pretextual reason for its decision. But a third claim, based on retaliation, deserves further consideration because a reasonable jury could infer that the company had knowledge of this lawsuit and took an adverse employment action because of it.
 
USA v. Simpson  (April 3, 2008) (Appeal from E.D. TN)
-  http://www.ca6.uscourts.gov/opinions.pdf/08a0138p-06.pdf
-  David Simpson entered a conditional guilty plea to possession, with intent to distribute, of 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), reserving his right to appeal the district court’s denial of his motion to suppress. Simpson argues that the police officer had neither probable cause nor reasonable suspicion of any illegal behavior that would justify stopping Simpson’s vehicle, and that the seizure and subsequent search therefore violated the Fourth Amendment. We agree with the district court that there was no constitutional violation, and we therefore affirm, but we do not rely on the district court’s overly broad interpretation of the Tennessee statute at issue.
 

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