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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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May 25th - 28th, 2010

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

TOPICS:
- Civil Rule 15 / Name of party unknown
- Unauthorized practice of law
- Attorney Misconduct
- Criminal law / Corporation in absentia
- Filing properly with clerk of courts
- Agency Agreement / Noncompete / Breach / Settlement enforcement
- Anders v. California / Meritorious appeal
- Plea / Knowingly / Crim.R.11(C)(2)
- Zoning / Adminstrative appeal / Evidence / Standard of Review
- State v. Jones / Plea / Amended charge
- Cincinnati Municipal Code 910-7 / Making loud noises
- Real Property / Specific performance / American Rule / Attorney Fees
- Civil stalking protection order / Evidence / Testimony
- Lack of transcript filed with appeal / Obstructing official business
- Lack of an affidavit of merit / Final appealable order
- Carry a concealed weapon Notification / Timely notify
- Motion to suppress / Incriminating statements / Voluntarily admission
- Evidence / Ineffective counsel / Cruel and Unusual punishment / Jury instructions
- Subject matter jurisdiction / Drug trafficking / Out of state
- Motion for a new trial
- Mortgage / Loan / Duress and fraudulent inducement / Parole evidence rule
- Evidence / Manifest Weight / Insufficient / Motion for an acquittal / Ieffective counsel / Sentencing
- Tort / Civil / Procedure
- Civil / Attorney Fees
- Appellate / Criminal / Constitutional / Evidence / Prosecutor / Rape / Sex offenses
- Sentencing
- Prosecutor / Counsel / Criminal
- New Trial / Evidence / Instructions
- Statute of limitations / Rooker-Feldman doctrine / Constitutional rights / Children removed
- Writ of habeas corpus / Due process right
- Motion to suppress / Probable cause
- Testimony / Self incrimination
 

Ohio Supreme Court
 
Erwin v. Bryan (Slip Opinion)(May 25, 2010)
- http://www.sconet.state.oh.us/rod/docs/pdf/0/2010/2010-ohio-2202.pdf
-  Civ.R. 15 — Name of party unknown — Pursuant to Civ.R. 15(D), a
complaint against a party whose name is unknown must describe the
defendant and a summons containing the words “name unknown” must be
personally served on the defendant — Civ.R. 15(D) does not authorize a
claimant to designate defendants using fictitious names as placeholders
in a complaint filed within the statute-of-limitations period and then
identify, name, and personally serve those defendants after the
limitations period has elapsed.
 
Ohio State Bar Assn. v. Appraisal Research Corp. (Slip Opinion)(May 25, 2010)
- http://www.sconet.state.oh.us/rod/docs/pdf/0/2010/2010-ohio-2204.pdf
-  Unauthorized practice of law — Defended corporation’s appraisals at
board-of-revision hearings — Consent decree accepted — Injunction
imposed.
 
Cleveland Metro. Bar Assn. v. Lockshin (Slip Opinion)(May 25, 2010)
- http://www.sconet.state.oh.us/rod/docs/pdf/0/2010/2010-ohio-2207.pdf
-  Attorneys — Misconduct — Inappropriate touching of and sexual
remarks to clients and others — Failure to file timely notice of appeal
in criminal case — Indefinite suspension.
 
Cleveland v. Destiny Ventures, L.L.C. (Slip Opinion)(May 26, 2010)
- http://www.sconet.state.oh.us/rod/docs/pdf/0/2010/2010-ohio-2320.pdf
-  Criminal law — R. C. 2941.47 — Trial of a corporation in absentia —
Proceeding initiated by affidavit or complaint in a municipal court.
 
Zanesville v. Rouse (Slip Opinion)(May 26, 2010)
- http://www.sconet.state.oh.us/rod/docs/pdf/0/2010/2010-ohio-2218.pdf
-  A document is “filed” when it is deposited properly for filing with
the clerk of courts. The clerk’s duty to certify the act of filing
arises only after a document has been filed — When a document lacks an
endorsement from the clerk of courts indicating that it has been filed,
filing may be proved by other means.
 
Cleveland v. Washington Mut. Bank (Slip Opinion)(May 26, 2010)
- http://www.sconet.state.oh.us/rod/docs/pdf/0/2010/2010-ohio-2219.pdf
-  Criminal law — R. C. 2941.47 does not authorize a trial of a
corporation in absentia in a criminal proceeding that is initiated by
affidavit or complaint in a municipal court.
 
First District Court of Appeals
[Search Other Ohio Districts]
 
*** Judgments***

PNG Telecommunications, Inc. vs. Caused Based Commerce, Inc.(May 26, 2010)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-090714_05262010.pdf
-  Plaintiff-appellant PNG Telecommunications, Inc., appeals the trial
court’s order overruling its motion to enforce a settlement with
defendants-appellees Mark J. Eichler and Cause Based Commerce, Inc.,
d.b.a. The Sienna Group. Judgment AFFIRMED.
 
State of Ohio vs. John Cotton (May 26, 2010)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-090711_05262010.pdf
-  Defendant-appellant, John Cotton, appeals the judgment of the
Hamilton County Court of Common Pleas sentencing him to a term of
imprisonment for felonious assault. Cotton’s appointed appellate
counsel, pursuant to Anders v. California, states in her brief that she
has found no errors in the proceedings below and requests this court to
review the record for any reversible error. Judgment AFFIRMED.
 
State of Ohio vs. Michael Peterson (May 26, 2010)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-090635_05262010.pdf
-  Peterson pleaded guilty to one count of domestic violence. At the
plea hearing, the trial court conducted the required voluntariness
colloquy, accepted the plea, and found Peterson guilty. The trial court
then sentenced him to three years of community control on the condition
that he enter and complete the River City drug program. Peterson argues
that his guilty plea was not knowingly made. Judgment AFFIRMED.
 
Hill Country Ltd., et al. vs. City of Norwood Board of Zoning Appeals (May 26, 2010)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-090624_05262010.pdf
-  Plaintiffs-appellants Hill Country Ltd. and Toni Kirkner appeal from
the trial court‟s entry affirming a decision by the Norwood Board of
Zoning Appeals that denied Hill Country Ltd.‟s application for a
conditional-use permit for an office project or, in the alternative, for
an area variance for a single-family residence for the property located
at 4320 Franklin Avenue in the city of Norwood. She argues that the
trial court (1) erred in dismissing Hill County Ltd. as a party to the
administrative appeal, (2) applied the wrong standard of review, and (3)
failed to consider and weigh all the evidence. Judgment AFFIRMED.
 
State of Ohio vs. Joshua Almond (May 26, 2010)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-090598_05262010.pdf
-  Almond appeals from the conviction imposed after he had pled guilty
to the unlawful possession of drug paraphernalia, punishable as a
fourth-degree misdemeanor. He asserts that his plea was involuntary
because the trial court failed to ensure that Almond understood that he
was entering a plea to the lesser offense. Judgment AFFIRMED.
 
State of Ohio vs. Edward Lindenschmidt (May 26, 2010)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-090583_05262010.pdf
-  Lindenschmidt appeals a conviction for making loud noises in
violation of Cincinnati Municipal Code 910-7. He argues that the trial
court erred in convicting him of violating the noise ordinance because
the police officer gave him a citation without giving him an opportunity
to reduce the noise. Judgment AFFIRMED.
 
Judy Sizemore, et al. vs. Betty R. Burns (May 26, 2010)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-090574_05262010.pdf
-  When negotiations collapsed, the Sizemores filed suit against Burns.
They sought specific performance—a court order requiring Burns to
purchase the property—incidental damages, and attorney fees. The matter
proceeded to a bench trial. The trial court issued a decision, including
extensive findings of fact and conclusions of law, and found for the
Sizemores. The trial court ordered Burns to purchase the home, it
awarded $44,304.60 “representing the sum of loss of use of the original
purchase price at the then-prevailing statutory pre-judgment interest
from 2005 to the present day, maintenance, utility taxes, and insurance
costs, plus interest at the statutory rate until fully paid.” The trial
court also made an award of attorney fees against Burns. The trial court
first noted that Burns‟s conduct forced the Sizemores to retain an
attorney to try to resolve the matter. The trial court also noted, “the
Defendant‟s refusal to acknowledge her contractual responsibilities
without any defense or justification for her failure to close, supports
a finding of bad faith which would justify an exception to the American
Rule.” Burns claims that the trial court erred when it ordered specific
performance and that the award of damages, including attorney fees, was
improper. Judgment AFFIRMED in Part, REVERSED in regard to attorney fees
and REMANDED to enter corrected judgment.
 
Jane E. Davis vs. Daniel R. Haller (May 26, 2010)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-090551_05262010.pdf
-  Respondent-appellant Daniel R. Haller, pro se, presents on appeal a
single assignment of error challenging the judgment of the Hamilton
County Common Pleas Court overruling his objections and adopting a
magistrate’s decision granting petitioner-appellee Jane Davis’s petition
for a five-year civil stalking protection order (“CSPO”) pursuant to
R.C. 2903.14. Judgment AFFIRMED.
 
State of Ohio vs. Amar Gueye (May 26, 2010)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-090514_05262010.pdf
-  Gueye was arrested and charged with obstructing official business2
for an incident that occurred at the main branch of the Public Library
of Cincinnati and Hamilton County. He proceeded to trial without
counsel. A jury found him guilty of the charge, and he was sentenced to
pay a $500 fine plus court costs. Gueye has not filed a transcript of
the proceedings with his appeal. When portions of the record necessary
to resolve the assigned errors are omitted, this court has no choice but
to presume the validity of the lower court’s proceedings. Judgment
AFFIRMED.
 
Daniel Siegel, et al. vs. Andrew Joel Ringer, M.D., et al. (May 26, 2010)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-090510_05262010.pdf
-  Plaintiffs-appellants Daniel Siegel and Francis B. Siegel filed a
medical claim against defendants-appellees Andrew Joel Ringer and
Mayfield Clinic & Spine Institute. Ringer and Mayfield moved to dismiss
the claim for lack of an affidavit of merit, as required by Ohio Civ.R.
10(D), and the trial court dismissed the complaint without prejudice.
The Siegels appeal that dismissal. We conclude that the trial court's
order is not a final, appealable order, and we therefore DISMISS the
appeal.
 
State of Ohio vs. Terrance Wilson (May 26, 2010)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-090485_05262010.pdf
-  Wilson was charged with failing to timely notify law enforcement
that he had a license to carry a concealed weapon and that he had such a
weapon. Wilson claims that his conviction was based upon insufficient
evidence and was against the manifest weight of the evidence. Judgment
AFFIRMED.
 
State of Ohio vs. James Demarcia (May 26, 2010)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-090445_05262010.pdf
-  DeMarcia appeals the judgment of the Hamilton County Court of Common
Pleas revoking DeMarcia’s community control and imposing a prison term
of 18 months. DeMacia’s appointed appellate counsel has advised this
court that, after a thorough review of the record, he can find nothing
that would arguably support DeMarcia’s appeal. Judgment AFFIRMED.
 
State of Ohio vs. Rachel N. Harrison (May 26, 2010)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-090441_05262010.pdf
-  Harrison appeals from her convictions on three counts of using
deception to obtain a dangerous drug. In her appeal, Harrison argues
that the trial court erred in overruling her motion to suppress certain
incriminating statements. But because her admissions were voluntarily
made, we affirm the trial court’s judgment.
 
State of Ohio vs. Michael D. Jackson (May 26, 2010)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-090435_05262010.pdf
-  Jackson was found guilty of aggravated murder with accompanying gun
specifications, murder with accompanying gun specifications, two counts
of felonious assault with accompanying gun specifications, and two
counts of having a weapon under a disability. Jackson received an
aggregate sentence of 33 years’ to life imprisonment. Jackson argues (1)
that his convictions for aggravated murder and murder were against the
sufficiency and the weight of the evidence, (2) ineffective counsel, (3)
his sentence constituted cruel and unusual punishment, and (4) the trial
court erred in failing to instruct the jury on the offense of voluntary
manslaughter. Judgment AFFIRMED.
 
State of Ohio vs. Robert Cavazos (May 26, 2010)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-090430_05262010.pdf
-  Cavazos was convicted of trafficking in marijuana in violation of
R.C. 2925.03(A)(2) and trafficking in cocaine in violation of R.C.
2925.03(A)(1). The trial court imposed the agreed sentence: an aggregate
three-year prison term. He argues that the trial court lacked
subject-matter jurisdiction to accept his guilty plea, to convict him of
the trafficking charges, and to impose the agreed sentence, because he
was in Texas during the times alleged in the indictment. Judgment
AFFIRMED.
 
State of Ohio vs. Roy Wallace (May 26, 2010)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-090272_05262010.pdf
-  Wallace presents on appeal three assignments of error that, when
reduced to their essence, challenge the Hamilton County Common Pleas
Court’s judgment overruling his motion for a new trial without a
hearing. We AFFIRM the court’s judgment upon our determination that the
court had no jurisdiction to entertain the motion.
 
Bayview Loan Servicing, LLC. vs. Solomon Cook, et al. (May 26, 2010)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-090270_05262010.pdf
-  Cook defaulted on two loans, and Bayview exercised its right to
declare the loans immediately due and payable. It filed suit against the
Cooks to collect the amount due on the notes. Subsequently, it filed a
motion for summary judgment. A magistrate recommended that the court
grant Bayview’s motion and enter judgment in its favor. The Cooks
objected to the magistrate’s decision. The trial court overruled the
objections and adopted the magistrate’s decision. It granted judgment
against the Cooks on both notes and awarded damages consisting of the
principal due on the notes, interest and costs. The Cooks argue that
issues of fact existed that related to economic duress and fraudulent
inducement and the trial court erred in determining the amount of
damages. Judgment AFFIRMED.
 
State of Ohio vs. Kolon Carter (May 26, 2010)
- http://www.hamilton-co.org/appealscourt/docs/decisions/C-090211_05262010.pdf
-  Carter was indicted for one count of aggravated robbery, with
specifications, and one count of robbery. After a jury trial, he was
found guilty of both charges and the accompanying specifications. At
sentencing, the robbery count was merged with the aggravated-robbery
count as an allied offense. Carter was sentenced to five years in prison
for aggravated robbery and to three additional years on one
specification. The sentences were ordered to be served consecutively for
a total of eight years. He argues that (1) his conviction was based upon
insufficient evidence, (2) the conviction was contrary to the manifest
weight of the evidence, (3) the trial court improperly denied his motion
for an acquittal, (4) ineffective counsel, and (5) his sentence was
excessive.  Judgment AFFIRMED.
 
*** Opinions ***
 
Stalder v. St. Bernard-Elmwood Place City School Dist. (May 28, 2010)
- http://www.sconet.state.oh.us/rod/docs/pdf/1/2010/2010-ohio-2363.pdf
-  The trial court did not abuse its discretion by reversing a board of
education’s decision to terminate a teacher, where there was no good and
just cause to support the termination: the preponderance of the evidence
demonstrated that the teacher, who had an exemplary 20-year tenure, had
not thrown a basketball directly at a student but had instead thrown the
basketball at a ball in the student’s hands after the student had
repeatedly disobeyed the teacher’s instructions to return to class, and
that the student had not been injured. The trial court erred by awarding
attorney fees to the teacher, when the teacher failed to demonstrate
that the board of education had acted in bad faith in reaching its
decision to terminate the teacher’s employment contract.
 
State v. Lukacs (May 28, 2010)
- http://www.sconet.state.oh.us/rod/docs/pdf/1/2010/2010-ohio-2364.pdf
-  The out-of-court statements of a child rape victim to a hospital
social worker were admissible under Evid.R. 803(4) as statements made
for purposes of medical diagnosis and treatment even though the victim
was not competent to testify at trial where the social workers’
interview with the victim was part of an ongoing attempt to determine
the extent of sexual abuse and the appropriate treatment for the victim.
Statements made for purposes of medical diagnosis and treatment are not
testimonial; therefore, the admission of the victim’s statements under
the hearsay exception in Evid.R. 803(4) did not violate the defendant’s
right to confront the witnesses against him. The out-of-court statements
of a child rape victim’s older brother to a hospital social worker were
admissible at trial under Evid.R. 803(4) as statements made for purposes
of medical diagnosis and treatment where there was concern that he, too,
may have been a victim of sexual abuse, he had witnessed the abuse of
his sister, and a treatment plan had been formulated for him. The
out-of-court statements of a rape victim’s older brother were admissible
under Evid.R. 801(D)(1)(b) as prior consistent statements because the
brother testified at trial and the defendant’s defense throughout the
trial was that both children had been coached by their mother, their
grandparents and others to accuse him of abuse. Because the victim’s
brother testified at trial and was subject to cross-examination, the
Confrontation Clause was not implicated, and the admission of his
out-of-court statements did not violate the defendant’s right to
confront the witnesses against him. The victim’s out-of-court statements
to a social worker from Hamilton County Jobs and Family Services were
admissible under Evid.R. 803(4) as statements for purposes of medical
diagnosis and treatment where the social worker had come to interview
the children after being called by their grandparents, the interview was
a first step in diagnosing the problem, and the social worker had no
information about sexual abuse until the victim revealed that
information. The victim’s out-of-court statements to a social worker
were also admissible as excited utterances under Evid.R. 803(2) where
the social worker was the first person to talk to the victim about her
condition in a safe environment and where the victim was in a state of
nervous excitement and did not have the ability to reflect and
fabricate. The admission of the victim’s out-of-court statements into
evidence as excited utterances did not violate the defendant’s right to
confront the witnesses against him where the social worker to whom the
statements were made was not trying to investigate a crime, but was
responding to the present emergency of determining whether the victim
and her brother needed to be removed from their home and to receive
treatment. Out-of-court statements by the victim and her brother to
their therapist were admissible as statements for the purpose of medical
diagnosis and treatment under Evid.R. 803(4). The trial court’s decision
to allow the victim’s older brother, who had witnessed his sister’s
abuse, to testify from another room by remote video under R.C.
2945.481(C) did not violate the defendant’s right to confront the
witnesses against him and did not rise to the level of plain error even
though the trial court did not follow the procedures set forth in the
statute. The trial court erred in permitting a social worker and the
children’s therapist to testify that the children were telling the truth
and had not been coached; but given the quantum of evidence against the
defendant, the admission of the social worker’s opinion was harmless and
the admission of the therapist’s opinion was not plain error. The trial
court did not err in permitting a doctor who had examined both the
victim and her brother to testify that the victim had been sexually
abused because an expert witness may testify as to the ultimate issue in
a case. The trial court did not err in permitting the child’s mother to
testify about the defendant’s other acts because evidence that the
defendant had become violent when the two argued about the defendant’s
conduct toward the victim showed knowledge or absence of a mistake on
the part of the defendant, and because the testimony about the other
acts was inextricably interwoven with the crimes charged and was
necessary to give a complete picture of what had occurred. The lack of
specificity regarding dates in the indictment and the bill of
particulars did not prejudice the defendant’s ability to defend himself
when he did not raise a date-specific defense but instead claimed that
the children had been coached to fabricate the allegations against him.
The lack of specificity regarding dates in the indictment and the bill
of particulars did not allow the state to abandon its theory of the case
and introduce a new and unexpected theory but instead presented the
common situation in child-abuse cases where the crimes involved a
repeated course of conduct over an extended period time. The trial court
did not commit plain error by allowing the state to amend the indictment
to expand the time period in which the offenses allegedly occurred
because the amendment did not change the name or identity of the crimes
charged and the lack of specificity regarding dates did not prejudice
the defense. An improper comment by the prosecutor in closing argument
was not so egregious as to affect the defendant’s substantial rights or
deny him a fair trial, much less rise to the level of plain error. The
defendant’s convictions for rape and felonious assault were supported by
sufficient evidence and were not against the manifest weight of the
evidence where both the victim and her brother described numerous
incidents of rape, some of which caused the victim to bleed and cry in
pain, where their statements were corroborated by the physical evidence,
and where their stories were detailed and consistent over time. The
defendant’s conviction for failure to verify his address under R.C.
2950.06(B)(2) was supported by sufficient evidence when a police officer
testified that he had calculated the defendant’s date to verify by using
180-day periods from the date the defendant had originally registered as
a sexually oriented offender under the previous law and the defendant
had failed to appear at the sheriff’s office by that date. The
defendant’s prospective classification as a Tier III offender under
Senate Bill 10, which implemented the federal Adam Walsh Child
Protection and Safety Act of 2006, did not violate the defendant’s
constitutional rights. The defendant failed to demonstrate that a
reasonable probability existed that the outcome of the trial would have
been different absent any alleged errors, and, therefore, he has failed
to show that the cumulative effect of any errors denied him a fair
trial. The case must be remanded because the trial court failed to
address the mandatory issue of court costs at the sentencing hearing or
in its judgment entry.
 
State v. Dockery (May 28, 2010)
- http://www.sconet.state.oh.us/rod/docs/pdf/1/2010/2010-ohio-2365.pdf
-  The trial court did not err in allowing the prosecution to comment
in closing argument on the motives of its witnesses in testifying, and
its representations did not improperly vouch for the credibility of the
witnesses’ testimony: the jury had heard all the relevant testimony
regarding the witnesses’ motives to testify, and it was supplied with
ample information to make its own credibility assessments. Defense
counsel was not ineffective for failing to object to the state’s
representations that its witnesses had no motive to lie: an objection
would have been futile because the state’s comments were not improper.
The defendant’s convictions were supported by were not against the manifest
weight of the evidence: one of the victims testified that he had known the defendant
for a long time, and that he had recognized him as the masked man who had shot him because of his
unique eyes and enfeebled hand; and the defendant placed himself at the
crime scene as a lookout, and even though he testified that he had been
forced to participate at gunpoint, the jury was free to disbelieve his
testimony.
 
State v. Thompson (May 28, 2010)
- http://www.sconet.state.oh.us/rod/docs/pdf/1/2010/2010-ohio-2366.pdf
-  The trial court did not err in allowing the prosecution to comment
in closing argument on the motives of its witnesses in testifying, and
its representations did not improperly vouch for the credibility of the
witnesses’ testimony: the jury had heard all the relevant testimony
regarding the witnesses’ motives to testify, and it was supplied with
ample information to make its own credibility assessments. Defense
counsel was not ineffective for failing to object to the state’s
representations that its witnesses had no motive to lie: an objection
would have been futile because the state’s comments were not improper.
The defendant’s convictions were supported by sufficient evidence and
were not against the manifest weight of the evidence: one of the victims
testified that he had known the defendant for a long time, and that he
had recognized him as the masked man who had shot him because of his
unique eyes and enfeebled hand; and the defendant placed himself at the
crime scene as a lookout, and even though he testified that he had been
forced to participate at gunpoint, the jury was free to disbelieve his
testimony.
 
State v. Houston (May 28, 2010)
- http://www.sconet.state.oh.us/rod/docs/pdf/1/2010/2010-ohio-2367.pdf
-  The trial court did not abuse its discretion when it denied the
defendant’s motion for a new trial: although a police report not
admitted into evidence had erroneously been submitted to the jury as an
exhibit, the error was harmless when the defendant could not show
prejudice, when the police report contained information that was largely
cumulative of other, properly admitted evidence, and when the properly
admitted evidence amply demonstrated the defendant’s guilt. The
defendant suffered no prejudice when a comment made by a prosecution
witness regarding the defendant’s silence under questioning was
unsolicited by the prosecution, and when the defendant refused an offer
for a limiting instruction by the court. In a prosecution for having a
weapon while under a disability, the trial court did not abuse its
discretion when it chose to give its own definition of the term
“possession” to the jury, when that definition was a correct
statement of the law as it applied to the facts of the case, and when
the defendant’s proposed instruction was intended to be used
specifically for drug offenses.
 
U.S. Sixth Circuit Court of Appeals:  Ohio Cases
 
Nancy Kovacic v. Cuyahoga County Department of (May 26, 2010)(Appeal from N.D. OH)
http://www.ca6.uscourts.gov/opinions.pdf/10a0152p-06.pdf
-  Plaintiff, Nancy Kovacic, brought this action on behalf of herself
and her minor children claiming that their constitutional rights were
violated when social workers from the Cuyahoga Department of Children
and Family Services, aided by several North Olmsted police officers,
entered her home by force and removed her two children, Daniel and
Katherine. The children were placed in the temporary custody of the
County and were not returned home for 10 months. Based on this conduct,
plaintiffs claim that defendants violated the United States Constitution
and other federal laws, as well as Ohio law. The primary bases for
plaintiffs’ claims are that the social workers relied on false
information from third parties to effectuate the removal and that the
subsequent juvenile court proceedings concerning the removal failed to
comport with due process. Plaintiffs also claim that it was error for
defendants not to obtain a warrant or other prior judicial approval
before removing the children from their mother’s custody. More than two
and one-half years elapsed between the removal of the children and the
commencement of this action in federal court. The district court did not
reach the merits of any of the claims. It found the mother’s claims
barred by the two-year statute of limitations in Ohio for Section 1983
actions and state law tort claims. The district court then dismissed the
children’s federal claims under the Rooker-Feldman doctrine, finding
that the alleged unlawful conduct of Family Services and its social
workers was “intertwined” with issues decided by the state-court,
thereby barring the district court from hearing the merits of the
claims. The district court has not made findings or conclusions on the
merits of the constitutional claims, and we must review the factual
allegations in the light most favorable to plaintiffs. Defendant police
officers and the City of North Olmsted subsequently settled with
plaintiffs, leaving only Cuyahoga County and four social workers who
work for the County Department of Children and Family Services as
parties to this appeal. The appeal raises two main issues: (1) whether
the district court erred in dismissing all of Nancy Kovacic’s claims on
statute of limitations grounds, and (2) whether the district court erred
in finding it lacked jurisdiction over the children’s claims under the
Rooker-Feldman doctrine. For the reasons discussed below, we affirm the
judgment of the district court’s dismissal of Nancy Kovacic’s claims on
statute of limitations grounds. We remand the children’s claims to the
district court because their federal claims are not barred by Rooker-
Feldman and the district court has jurisdiction to hear their claims.
 
U.S. Sixth Circuit Court of Appeals: Other States Cases
 
Gagne v. Booker  (May 25, 2010)(Appeal from E.D. MI)
http://www.ca6.uscourts.gov/opinions.pdf/10a0151p-06.pdf
-  Petitioner Lewis Gagne and his co-defendant, Donald Swathwood, were
each charged with three counts of criminal sexual misconduct for
forcibly and simultaneously engaging in sexual activities with Gagne’s
ex-girlfriend, Pamela Clark. All of the charges arose out of events
occurring over the course of one night. The key question at trial was
one of consent. The jury convicted Gagne of two counts, and Swathwood of
three. Gagne filed a petition for a writ of habeas corpus, 28 U.S.C. §
2254, and the district court granted him relief on the basis that the
state trial court’s decision to exclude certain evidence had violated
Gagne’s due process right to present a meaningful defense. Respondent,
Warden Raymond Booker, represented by the Michigan Attorney General
(“the State”), appealed. We now affirm.
 
USA v. Myron Hughes (May 27, 2010)(Appeal from M.D. TN)
http://www.ca6.uscourts.gov/opinions.pdf/10a0153p-06.pdf
-  Myron Hughes was pulled over by Nashville Metropolitan Police
Officer Matthew Atnip around 11:00 p.m. on March 6, 2007, shortly after
Atnip observed Hughes’s car standing for approximately three minutes at
or near an L-shaped intersection in a deserted, high-crime, industrial
neighborhood. Hughes, a convicted felon, admitted that he had been
rolling a marijuana cigarette; a subsequent search of the vehicle
produced a pistol and small amounts of marijuana, crack cocaine, and
cocaine. Hughes was charged with being a felon in possession of a
firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924. On August 6,
2008, the district court granted Hughes’s motion to suppress the
evidence found in the car, concluding that Atnip lacked reasonable
suspicion that Hughes was engaged in criminal activity and that Atnip
did not in fact stop Hughes because of any alleged traffic violations.
Because the district court incorrectly focused on Atnip’s subjective
intent, we reverse in part and remand for consideration of whether, at
the time of the stop, Atnip had probable cause to believe that Hughes
had violated Nashville Municipal Ordinance 12.40.080.
 
USA v. Raymond Yono (May 28, 2010)(Appeal from E.D. MI)
http://www.ca6.uscourts.gov/opinions.pdf/10a0154p-06.pdf
-  Defendant-Appellant Raymond Yono appeals his conviction and
sentence, arguing that his right against self-incrimination was violated
when the district court failed to ensure affirmatively that he knowingly
and voluntarily chose to testify on his own behalf. We AFFIRM.