Daily Case Update Archive

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March 9th - 12th, 2009

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

TOPICS:
- Juror / Jury Instructions / Evidence / Sufficiency
- Evidence / Manifest Weight / Sufficiency / Ineffective counsel
- Anders v. California / Meritorious appeal
- Sentencing / Concealed weapon
- Clerical error / Criminal Rule 11 / Plea
- Evidence / Manifest weight / Witness credibility
- Sex offender reclassification / Senate Bill 10
- Habeas corpus / Transfer to a community correctional center
- Jury Instructions / Evidence / Testimony / Abuse of discretion
- Writ of habeas corpus / Antiterrorism and Effective Death Penalty Act
- Slip and fall / Breach of duty / Constructive notice
- Ohio Civil Rights Act / Age discrimination / Abuse of Discretion
- Copyright infringement / Attorney Fees
- United States Sentencing Guidelines
 

Ohio Supreme Court

 

No Opinions.
 

First District Court of Appeals

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*** Judgment Entries ***

State of Ohio vs. James Bohannon (March 11, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070860_03112009.pdf
-  Bohannon was convicted of five counts of aggravated robbery, three counts of rape, two counts of gross sexual imposition, and seven counts of kidnapping, each with a sexual-motivation specification. Judgment AFFIRMED.

State of Ohio vs. Jeffrey K. Hall (March 11, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-070872_03112009.pdf
-  Hall was convicted of one count of rape and both counts of gross sexual imposition. He was sentenced to prison for life for the rape count and to five years for each count of gross sexual imposition. The trial court ordered that the prison terms be served consecutively. In this case, the trial court mistakenly found Hall to be a sexual predator “by operation of law.” Because of this mistake, it did not make a finding that Hall was likely to offend in the future and did not consider the factors under former R.C. 2950.11(F)(2)(a) through (k). For this reason, and pursuant to our decision in Clay, Hall is entitled to a new sexual-predator hearing.22 We affirm the judgment of the trial court in part, vacate the sentences, and remand this case for the trial court to (1) conduct a hearing to determine whether Hall should be classified as a sexual predator, and (2) resentence Hall only for the single count of rape.

State of Ohio vs. Desco Strickland (March 11, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080120_03112009.pdf
-  Following a proper and complete Crim.R. 11 colloquy with the trial court, Desco Strickland pleaded guilty to one count of robbery and to one count of aggravated robbery with a corresponding gun specification. Each of these offenses occurred on a different day. The trial court also revoked Strickland’s community control that had been imposed in two prior cases. Strickland was sentenced to 12 years’ incarceration. His counsel requests that this court, consistent with Anders, independently review the record to determine whether the proceedings below were free from prejudicial error.  Judgment AFFIRMED.

State of Ohio vs. John E. Askins (March 11, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080191_03112009.pdf
-  Askins was indicted for two counts of gross sexual imposition that had occurred on June 30, 2007. Askins pleaded guilty and was placed on community control. The trial court told Askins that if he violated the terms of his community control, he would be sentenced to three years’ incarceration. Over defense counsel’s objection, Askins was classified as a Tier I sex offender under Am.Sub.S.B. No. 10 (“Senate Bill 10”). Askins has appealed his sex- offender classification in the case numbered C-080191. Askins was charged with and convicted of violating the terms of his community control. He was sentenced to concurrent 15-month terms of incarceration. Askins has appealed his conviction for violating his community control in the case numbered C-080412. Judgment AFFIRMED.

State of Ohio vs. Donnell McCreagh (March 11, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080200_03112009.pdf
-  On May 6, 1996, petitioner-appellant Donnell McCreagh pleaded guilty to two counts of sexual battery. He was sentenced to concurrent terms of two years’ incarceration and was designated a sexually oriented offender. Under former R.C. Chapter 2950, after his release McCreagh was required to annually register as a sexual offender for ten years. In December 2007, McCreagh received a notice from the Ohio Attorney General stating that he had been reclassified under Am.Sub.S.B. No. 10 (“Senate Bill 10”) as a Tier III sex offender and that he was required to register with the local sheriff every 90 days for life. Judgment AFFIRMED.

State of Ohio vs. Denise Peterson (March 11, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080248_03112009.pdf
-  Peterson appeals the trial court’s judgment convicting her of complicity to theft. Peterson contests (1) the sufficiency of evidence, (2) the weight of the evidence, and (3) that her trial counsel was ineffective for failing to allow her to testify at trial. Judgment AFFIRMED.

State of Ohio vs. Michael Tucker (March 11, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080285_03112009.pdf
-  Tucker was convicted of aggravated menacing, a first-degree misdemeanor in violation of R.C. 2903.21, and obstructing official business, a fourth-degree misdemeanor in violation of R.C. 2921.31. The trial court imposed an aggregate prison term of 270 days. Tucker’s appointed appellate counsel, pursuant to Anders v. California,2 states in his brief that he has found no errors in the proceedings below, has moved to withdraw as counsel, and has requested this court to review the record for any reversible error. Judgment AFFIRMED.

State of Ohio vs. John Trimble (March 11, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080307_03112009.pdf
-  Trimble appeals his conviction for carrying a concealed weapon. Trimble asserts that the trial court erred when it imposed a sentence of 18 months. Judgment AFFIRMED.

State of Ohio vs. James Davis (March 11, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080364_03112009.pdf
-  Davis was indicted under R.C. 2923.13(A)(3), which states that no person shall knowingly acquire, have, carry, or use any firearm if the person has been convicted of trafficking in any drug of abuse. Davis appeals his conviction for having weapons under a disability. Davis argues that his conviction was against the sufficiency and weight of the evidence. Judgment AFFIRMED.

State of Ohio vs. Scott Kraemer (March 11, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080387_03112009.pdf
-  In 2000, petitioner-appellant Scott Kraemer was convicted of sexual battery in Clinton County, Ohio. Under former R.C. Chapter 2950, Kraemer was required to annually register as a sexual offender for ten years. Kraemer, who now lives in Hamilton County, later received a notice from the Ohio Attorney General stating that he had been reclassified under Am.Sub.S.B. No. 10 (“Senate Bill 10”) as a Tier III sex offender and that he was required to register with the local sheriff every 90 days for life. He challenges the constitutionality of Senate Bill 10. Judgment AFFIRMED.

State of Ohio vs. Phillip J. Hile (March 11, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080452_03112009.pdf
-  In 2001, petitioner-appellant Phillip Hile pleaded guilty to and was convicted of sexual battery and attempted gross sexual imposition. He was adjudicated a sexually oriented offender. Under former R.C. Chapter 2950, Hile was required to annually register as a sexual offender for ten years. In December 2007, Hile received a notice from the Ohio Attorney General stating that he had been reclassified under Am.Sub.S.B. No. 10 (“Senate Bill 10”) as a Tier III sex offender and that he was required to register with the local sheriff every 90 days for life. He argues that Senate Bill 10 is unconstitution.  Judgment AFFIRMED.

State of Ohio vs. Larry Lewis (March 11, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080494_03112009.pdf
-  Lewis pled no contest to failing to periodically verify his current address under R.C. 2950.06 and to failing to provide notice of a change of address under R.C. 2950.05. The trial court accepted Lewis’ plea and found him guilty of these offenses. The court imposed an aggregate sentence of one year of imprisonment. Lewis argues on appeal that the trial court failed to comply with Crim.R. 11 when accepting his no-contest plea because the court had allowed the prosecutor to misstate one of the offenses that he had pled to. Judgment AFFIRMED and case REMANDED for correction of clerical error.

Eleanor McClellan vs. Valvoline Instant oil Change (March 11, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080492_03112009.pdf
-  Eleanor McClellan sued Valvoline Instant Oil Change, alleging that the company had negligently performed an oil change on her van, causing the front main oil seal to break. Repairs would have cost about $4,500. A magistrate determined that Valvoline was not at fault-McClellan objected to the magistrate’s decision. The trial court overruled her objections and entered judgment for Valvoline. McClellan now appeals. Judgment AFFIRMED.

State of Ohio vs. Alan Michael Phillips (March 11, 2009)
-  http://www.hamilton-co.org/appealscourt/docs/decisions/C-080859_03112009.pdf
-  In 1997, petitioner-appellant Alan Mark Phillips pleaded guilty under a plea bargain to sexual battery and aggravated assault. Phillips was convicted and was designated a sexually oriented offender. Under former R.C. Chapter 2950, Phillips was required to annually register as a sexual offender for ten years. In December 2007, Phillips received a notice from the Ohio Attorney General stating that he had been reclassified under Am.Sub.S.B. No. 10 (“Senate Bill 10”) as a Tier III sex offender and that he was required to register with the local sheriff every 90 days for life. He alleges that the trial court erred in finding that the retroactive application of Senate Bill 10’s tier-classification and registration requirements was constitutional. Judgment AFFIRMED.
 

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

 

Louis Demis v. T. Sniezek (March 9, 2009) (Appeal from N.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0089p-06.pdf
-  Petitioner-Appellant, Louis W. Demis (“Demis”), a federal prisoner at the time he filed the instant action, applied to the district court for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging the lawfulness of the Bureau of Prisons’ (“BOP”) regulations prohibiting prisoner transfer to a community correctional center (“CCC”)-now known as residential re-entry centers (“RRC”)-until the prisoner has served at least ninety percent of his or her sentence. Specifically, Demis argued that the BOP’s regulations, codified at 28 C.F.R. §§ 570.20 and 570.21, are inconsistent with the requisite individualized consideration of the factors regarding prisoner transfer set forth in 18 U.S.C. § 3621(b). Adopting the reasoning of other circuits that previously considered the same issue and invalidated the regulations, a magistrate judge recommended that Demis’ petition be granted. The district court, however, determined that Demis’ petition was moot because Demis already had been transferred to a CCC while his habeas application was pending. On September 4, 2007, Demis filed a timely appeal from the district court’s dismissal order. Shortly thereafter, on September 28, 2007, Demis’ sentence ended and he was released from custody. The government thus urges the Court to dismiss Demis’ appeal as moot, arguing that Demis’ release from custody ended the capacity of this Court to grant meaningful relief. For the reasons set forth below, we hereby DISMISS Demis’ appeal as moot.

USA v. Hunter (March 9, 2009) (Appeal from S.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0091p-06.pdf
-  Christopher Hunter was convicted of possession of cocaine with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1); conspiracy to distribute in excess of five kilograms of cocaine, in violation of 21 U.S.C. § 846; possession of a firearm in furtherance of a drug crime, in violation of 18 U.S.C. § 924(c)(1); and for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He now appeals. Hunter makes eleven assignments of error:1 (1) that the court constructively amended count three of the indictment in giving jury instructions, or alternatively, that count three fails to state a federal offense; (2) that there was insufficient evidence to convict him of count one; (3) that the government failed to prove possession in counts two, three, and four; (4) that the court abused its discretion in admitting a photo of Hunter holding a gun; (5) that the Government knowingly used false testimony at trial; (6) that the court abused its discretion in failing to instruct the jury on how to convert ounces to grams; (7) that the Government improperly published a summary chart to the jury; (8) that the court committed clear error in finding at sentencing that the conspiracy involved in excess of fifty kilograms of cocaine; (9) that his counsel at sentencing had a conflict of interest; (10) that the district court improperly calculated his criminal history; and (11) that the court abused its discretion in failing to grant a hearing on ineffective assistance of counsel. We REVERSE Hunter’s conviction and sentence for violating 18 U.S.C. § 924(c)(1), but we AFFIRM Hunter’s other convictions and sentences. Accordingly, we REMAND for such further proceedings consistent with this opinion as are necessary.

Cornwell v. Bradshaw (March 11, 2009) (Appeal from N.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0093p-06.pdf
-  Petitioner-appellant Sidney Cornwell was convicted by an Ohio jury of (1) aggravated murder committed by prior calculation and design; (2) three counts of attempted aggravated murder, with a firearm specification attached to each count and; (3) attached to the aggravated murder count, a death penalty specification that the murder was committed as part of a course of conduct involving the purposeful killing of or attempt to kill two or more people. On direct appeal, the Ohio Supreme Court upheld Cornwell’s conviction and sentence, and the United States Supreme Court denied his petition for a writ of certiorari. After unsuccessfully pursuing postconviction relief in Ohio state court, Cornwell sought a writ of habeas corpus in federal district court. The district court denied Cornwell’s petition but issued a certificate of appealability on three claims. We granted a certificate of appealability on a fourth claim. For the following reasons, we affirm the judgment of the district court denying Cornwell’s habeas petition.

Bonnie Sullivan v. Oregon Ford, Inc. (March 12, 2009) (Appeal from N.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0094p-06.pdf
-  Plaintiffs-Appellants Bonnie and John Sullivan (the “Sullivans”) appeal the district court’s grant of summary judgment in favor of Defendant- Appellee Oregon Ford, Inc., d/b/a Mathews Ford Oregon (“Mathews Ford”) on their claims for damages arising out of a slip-and-fall incident at Mathews Ford on June 27, 2005.

USA v. Paulo Medina-Almaguer (March 12, 2009) (Appeal from N.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0095p-06.pdf
-  Paulo Sergio Medina-Almaguer appeals his 27-month sentence for illegal reentry after deportation. At stake is whether the district court properly characterized a 1989 state-court conviction as a “drug trafficking offense” under the sentencing guidelines.

Tommy Morgan v. New York Life Insurance Company (March 12, 2009) (Appeal from N.D. OH)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0096p-06.pdf
-  Tommy G. Morgan was terminated as a managing partner with New York Life. He brought an age discrimination action under the Ohio Civil Rights Act, R.C. § 4112. The jury found in his favor. The jury awarded him $6,000,000 in compensatory damages and $10,000,000 in punitive damages. New York Life raises several issues on appeal: (1) that the district court erred in denying New York Life’s motion for judgment as a matter of law and abused its discretion in denying New York Life’s motion for a new trial despite its alleged legitimate business justifications for Morgan’s termination; (2) that the district court abused its discretion in admitting statements of alleged age animus that were unrelated to Morgan and were not proximate in time to his termination; (3) that the district court abused its discretion in declining to give New York Life’s proposed jury instruction relating to statements of alleged age animus; and (4) that the district court improperly upheld the punitive damages award because the amount is excessive and does not comport with due process. For the reasons that follow, we find no error in the district court’s decision to deny New York Life’s motion for judgment as a matter of law and motion for a new trial. Moreover, the district court did not abuse its discretion in admitting statements of alleged age animus or in declining to give New York Life’s proposed jury instructions. Thus, we affirm its judgment as to the compensatory damages award. However, we vacate the punitive damages award and remand the case to the district court with instructions to enter an order of remittitur reducing the award.
       

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

 

Jones v. Blige (March 9, 2009) (Appeal from E.D. MI)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0090p-06.pdf
-  Plaintiffs-Appellants Leonard Jones and James E. White (collectively, “Plaintiffs”) sued Mary J. Blige, a singer, Asiah Lewis and Luchana M. Lodge, lyricists, and Universal-MCA Music Publishing, Inc. and Universal Music Group, Inc. (“Universal”) (collectively, “Defendants”) for copyright infringement. Plaintiffs claim that a song by Blige, “Family Affair,” infringed a song created by Plaintiffs, “Party Ain’t Crunk,” that Plaintiffs submitted to Universal on a demo compact disc (“CD”) prior to the release of Blige’s song. The district court granted summary judgment to all Defendants. Plaintiffs appeal that ruling, and Defendants Blige and Universal appeal the district court’s denial of their motion for attorneys’ fees. For the reasons set forth below, we AFFIRM the district court’s decisions.

USA v. Blue (March 9, 2009) (Appeal from E.D. TN)
-  http://www.ca6.uscourts.gov/opinions.pdf/09a0092p-06.pdf
-  Defendant Deborah Blue requests that her case “be remanded back to the district court for resentencing with instructions to grant a reduction in sentence for substantial cooperation.” Blue had moved the district court to grant a departure under Section 5K1.1 of the United States Sentencing Guidelines based on her substantial assistance, even though the government did not file a Section 5K1.1 motion. The district court denied her motion and did not depart from the Guidelines range under Section 5K1.1. Because the district court’s sentence was reasonable, we AFFIRM the judgment.
 

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