First District Friday Roundup!

On Wednesday November 8, the library will be closing at 12:30! Be sure to go out and vote!

10/21/2022
State of Ohio v. Jose Calderon Solorio
C-210526
Quote from Judge Bergeron:
L.C. testified that Mr. Calderon began sexually abusing her in the summer of 2017, when she was just 11 years old. The first time an assault occurred, Mr. Calderon, L.C., and L.C.’s younger brothers were camping in a recreational vehicle at Caesar Creek State Park in Warren County, Ohio. At night, as L.C. laid in bed between Mr. Calderon and her youngest brother, Mr. Calderon inappropriately touched L.C. over her clothes. Several months later, in February or March of 2018, Mr. Calderon laid next to L.C. on the couch in the family home. This time, he made inappropriate contact with her beneath her clothing. L.C. also testified about three other incidents during which Mr. Calderon made inappropriate contact with her beneath her clothing. These incidents took place when L.C. was 13 years old. Besides the first incident, the remaining five occurred in Hamilton County.

                                    The state’s delayed disclosure of exculpatory evidence, in the form of the victim’s previous grand jury testimony, did not violate Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), where defense counsel was given the evidence in advance of the victim’s testimony at trial and defense counsel ably cross-examined the victim on the inconsistencies in her testimonies.
                                    Defendant failed to establish plain error where defendant failed to demonstrate that the time periods alleged in the indictment spanned so broadly so as to prevent him from effectively defending himself and where the trial court’s jury instructions tracked nearly verbatim the Ohio Jury Instructions.
                                    Defendant’s convictions for six counts of gross sexual imposition were not against the weight or sufficiency of the evidence where the precise dates on which the acts took place were not elements of the crimes and the child victim gave detailed testimony about each instance of gross sexual imposition.
                                    The trial court did not commit plain error in admitting expert testimony where defendant presents on appeal no argument as to how either witness failed to meet the requirements of Evid.R. 702 and where the court allowed defense counsel to cross-examine one expert about the contents of an email sent to her by the prosecution that was explained as making sure that the expert’s report met the requirements of Crim.R. 16(K).
                                    Defendant cannot establish that he was denied the effective assistance of counsel where the failure to call an expert witness, to further question and challenge prospective jurors, to object to statements that were not hearsay, to object to leading questions on direct examination of a child witness, and to object to testimony where another witness testified to the same matter did not prejudice defendant.
JUDGMENT:        AFFIRMED

10/26/2022
Selective Insurance Co. of America v. Bronco Excavating, Inc.
C-220163
Quote from Judge Winkler:
On September 21, 2021, Selective Insurance filed a subrogation action on behalf of its insured against Bronco arising from an incident in which one of Bronco’s employees allegedly backed a dump truck into the insured’s parked vehicle. Selective Insurance allegedly paid its insured $4,633.45 for the property damage, and the insured paid $500 as an out-of-pocket deductible.
On October 26, 2021, Selective Insurance filed a motion for a default judgment, which the trial court granted on November 1, 2021. On November 4, 2021, Bronco filed a motion to set aside the default judgment in accordance with Civ.R. 60(B). Bronco alleged that it had sent notice of the lawsuit to its insurance carrier via email; however, the insurance carrier never received notice of the lawsuit.

The trial court abused its discretion in granting defendant’s motion for relief from judgment under Civ.R. 60(B) where the trial court failed to make a factual determination as to the alleged grounds for relief from judgment under Civ.R. 60(B)(1) through (5), and where the record contained no evidence to support defendant’s assertion of excusable neglect.

JUDGMENT:    REVERSED AND CAUSE REMANDED

10/26/2022
State of Ohio v. Brian Everett
C-220132
Quote from Judge Winkler:
Everett stabbed to death his friend and her 12-year-old daughter, Stephanie. Although he claimed self-defense, Everett was convicted upon jury verdicts of two counts of murder and tampering with evidence. We affirmed his convictions and sentences on direct appeal. State v. Everett, 1st Dist. Hamilton No. C-140275, 2015-Ohio-5273, appeal not accepted, 145 Ohio St.3d 1446, 2016-Ohio1596, 48 N.E.3d 584. With respect to Everett’s offenses against Stephanie, Everett was charged with aggravated murder in count one and felony murder in count two.
The jury acquitted Everett of aggravated murder but found him guilty of voluntary manslaughter in count one and guilty of felony murder in count two. At sentencing, the trial court merged counts one and two and sentenced Everett to 15 years to life for the felony murder of Stephanie. In his direct appeal, we determined that the jury verdicts with respect to Stephanie were not inconsistent. Id. at ¶ 21.
  
                         The common pleas court lacked subject-matter jurisdiction to entertain defendant’s successive petition for postconviction relief under R.C. 2953.23(A), because defendant’s claims failed to satisfy the statutory exceptions for successive petitions under R.C. 2953.23(A)(1), where the claims were based on the jury verdicts and not facts that the defendant was unavoidably prevented from discovering. 

JUDGMENT:   AFFIRMED AS MODIFIED   

10/26/2022
State of Ohio v. Maurice Smith
C-220110
The court sua sponte removes this case from the regular calendar and places it on the court’s accelerated calendar, 1st Dist. Loc.R. 11.1.1(A), and this judgment entry is not an opinion of the court. See Rep.Op.R. 3.1; App.R. 11.1(E); 1st Dist. Loc.R. 11.1.1. Defendant-appellant Maurice Smith appeals the Hamilton County Common Pleas Court’s judgment denying his postconviction “Motion to Vacate or Set Aside a Void Conviction and Sentence Due to Subject Matter Jurisdiction.” We affirm the court’s judgment as modified to dismiss the motion for lack of jurisdiction. In 2016, Smith, following a jury trial, was convicted of trafficking in cocaine, possession of cocaine, possession of marijuana, burglary, and tampering with evidence and sentenced to an aggregate 16-year prison term in the case numbered B-1506673. Based on these 2016 convictions, Smith was found guilty of violating his communitycontrol sanctions in the case numbered B-1406013B. The trial court imposed a 12-month prison term for the community-control violation to be served consecutively to the sentences imposed in the case numbered B-1506673.

10/26/2022
State of Ohio v. Brian Revere
C-220018
Quote from Judge Bergeron:
After driving his car onto a stranger’s front porch and inflicting roughly $30,000 worth of damage, defendant-appellant Brian Revere was charged and convicted of operating a motor vehicle while under the influence of alcohol and/or a drug of abuse, in violation of R.C. 4511.19(A (1)(a), and failure to maintain reasonable control in violation of R.C. 4511.202(A). During his sentencing and restitution hearing, the trial court imposed a 12-year license suspension and $5,000 in restitution to his victim, which Mr. Revere challenges on appeal. The state concedes error on the length of the license suspension, and we hold that the state failed to challenge evidence that demonstrated that Mr. Revere’s insurance would cover the damages, rendering the $5,000 award inappropriate. We accordingly reverse the challenged portions of the trial court’s sentencing dispositions and remand for further proceedings consistent with this opinion.

            The trial court erred in enhancing defendant’s sentence pursuant to a two-prior violation statute instead of a one-prior violation statute where defendant had only one prior OVI conviction.
                     The trial court abused its discretion ordering defendant to pay his victim restitution where defendant had demonstrated proof of insurance that had accepted liability at trial, and the state failed to challenge the adequacy of such coverage.                         

JUDGMENT:      Reversed and remanded

10/26/2022
State of Ohio v. Siobhan Andrews
C-210635
Quote from Judge Myers:
At trial, Massiach Hayward testified that beginning in February 2021, he told Andrews, a former friend, that he did not want to speak to her and that she should not contact him. In August 2021, he again told Andrews not to contact him, and he blocked her on Facebook because “she started saying that I was a rapist.” He testified that he was at a bar in October 2021 when Andrews began cursing and screaming at him, so he left the bar.
About a week later, on October 22, 2021, Andrews tried to speak to Hayward when they were at a bar, but he told her to leave him alone. Hayward said that one of Andrews’s friends assaulted him and was arrested by police.

Defendant’s conviction for disorderly conduct based on the trial court’s finding that her Facebook posts stating “I want to fight” constituted a threat of harm to persons or property under R.C. 2917.11(A)(1) was based upon insufficient evidence because the statements did not indicate that defendant wanted to fight a specific person and the trial court had previously determined that the statements, without something more specific, did not “rise to the level of threatening.”

JUDGMENT:            REVERSED AND APPELLANT DISCHARGED

10/28/2022
State of Ohio v. Jordan Parker
C-210440
Quote from Judge Crouse:
On January 1, 2020, after celebrating New Year’s Eve at a popular Over-The-Rhine bar, Parker, his girlfriend Ashley Thomas, and her sister Jasmine Carter, were walking back to Ashley’s car in a nearby parking garage on Sycamore Street in Cincinnati, Ohio. Frederick Moore and his brother Jeffrey Moore entered the same garage with their girlfriends Tisa Weaver and Danielle Carter. A shouting match erupted between Tisa and Jasmine, and the others attempted to physically restrain them from fighting with each other. After a few moments, and some
pushing, shoving, and punch-throwing between the female members of the groups, Parker pulled a gun out of his pocket and fired it, striking Frederick, Jeffrey, and Tisa. Parker fled from he scene in Ashley’s vehicle, crashed, and then fled on foot. Parker was detained several blocks away. At the crash site, police found a gun on the dashboard of the vehicle.

SUMMARY:              

Where defendant argued that the jury should have been instructed on self-defense pursuant to 2020 Am.S.B. 175, the trial court did not err in instructing the jury on the prior self-defense law because the offenses occurred prior to the statute’s effective date, the statute does not include any language to suggest that the General Assembly intended it to apply retroactively, the statute created a substantive right, and the statute “does not set out a penalty, punishment, or forfeiture, but instead provides the substantive law regarding an individual’s duty to retreat before using self-defense.” See State v. Hurt, 8th Dist. Cuyahoga No. 110732, 2022-Ohio-2039, ¶ 61.

Trial counsel was not ineffective for failing to object to the court’s jury instruction on self-defense because the jury was properly instructed on self-defense.
Defendant’s convictions for  felonious assault, felonious assault with a deadly weapon, having weapons while under disability, and failing to comply with an order or signal of a police officer were not against the manifest weight of the evidence because the victims testified that they did not hit or threaten defendant prior to him shooting them with a handgun.
The trial court erred when it failed to make, and incorporate into its entry, the findings required by R.C. 2929.14(C)(4) prior to imposing consecutive sentences.
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND CAUSE  REMANDED

10/28/2022
State of Ohio v. Christian Brown
C-210433
Quoate from Judge Zayas:
After a jury trial, Christian Brown was convicted of domestic violence in violation of R.C. 2919.25(A), which provides that “[n]o person shall knowingly cause or attempt to cause physical harm to a family or household member.” The trial testimony established that Brown had kicked his girlfriend, Brianna Siffel, during an argument. At the time of the offense, Brown and Siffel had dated for approximately ten months, and Siffel had just learned she was pregnant. The two got into an argument at Brown’s mother’s house where Brown resided. Siffel testified that Brown threw her on his bed and took her phone. When she tried to retrieve her phone, Brown pushed her, and she fell on the floor. While lying on the floor, Brown kicked her. Siffel suffered a bruise on her arm and a “fat lip.”

SUMMARY:              

Where defendant argued that the jury should have been instructed on self-defense pursuant to 2020 Am.S.B. 175, the trial court did not err in instructing the jury on the prior self-defense law because the offenses occurred prior to the statute’s effective date, the statute does not include any language to suggest that the General Assembly intended it to apply retroactively, the statute created a substantive right, and the statute “does not set out a penalty, punishment, or forfeiture, but instead provides the substantive law regarding an individual’s duty to retreat before using self-defense.” See State v. Hurt, 8th Dist. Cuyahoga No. 110732, 2022-Ohio-2039, ¶ 61.

Trial counsel was not ineffective for failing to object to the court’s jury instruction on self-defense because the jury was properly instructed on self-defense.
Defendant’s convictions for  felonious assault, felonious assault with a deadly weapon, having weapons while under disability, and failing to comply with an order or signal of a police officer were not against the manifest weight of the evidence because the victims testified that they did not hit or threaten defendant prior to him shooting them with a handgun.
The trial court erred when it failed to make, and incorporate into its entry, the findings required by R.C. 2929.14(C)(4) prior to imposing consecutive sentences.
JUDGMENT:    AFFIRMED IN PART, REVERSED IN PART, AND CAUSE  REMANDED

10/28/2022
State of Ohio v. Jason Haynes
C-210371
The court sua sponte removes this case from the regular calendar and places it on the court’s accelerated calendar, 1st Dist. Loc.R. 11.1.1(A), and this judgment entry is not an opinion of the court. See Rep.Op.R. 3.1; App.R. 11.1(E); 1st Dist. Loc.R. 11.1.1.
Jason Haynes pled guilty to burglary, a second-degree felony, and was sentenced to an indefinite prison term of three years to four years and six months. In one assignment of error, Haynes challenges the constitutionality of the Reagan Tokes Law under the separation-of-powers doctrine and the procedural-due-process clause. In the first issue presented for review in his assignment of error, Haynes argues that the Reagan Tokes Law violates the separation-of-powers doctrine by allowing an executive agency to sentence offenders for criminal acts. Haynes also contends the Regan Tokes Law fails to provide the necessary procedural-due-process protections prior to depriving offenders of their liberty interest to be free from incarceration beyond their judicially-imposed sentence

10/28/2022
Meena Maddali v. Adam Michael Haverkamp
C-210358
Quote from Judge Winkler:
This is the second appeal involving the dispute between Maddali and Haverkamp. The record shows that the parties started dating in 2013. Haverkamp was divorced and had a young son. Several months into their relationship, the parties decided they wanted to live together and looked at several properties. Maddali wanted to rent and Haverkamp wanted to buy a home but could not afford to do so on his own. Haverkamp convinced Maddali to buy a home with him in the Anderson Township area near Cincinnati by telling her that the homes retain their value and promising her that, if their relationship ended, then they would just sell
the home and “split the profits” from the sale.

                      An oral agreement, funded by adequate consideration and satisfying any statutory writing requirement by part performance, will be enforced where the agreement is supported by clear evidence.

JUDGMENT:             AFFIRMED AS MODIFIED