First District Friday Roundup (6/16)

The HCLL will be closed on Monday 6/20 in observance of Juneteenth. Following the General Orders, No. 3. U.S. House, 54th Congress, 1st Session (H. Doc. 369, Part 2). “General Order Number 3,” 1896. U.S. Documents Collection. Y 1.1/2: SERIAL 3437, African Americans celebrated their Emancipation day in Texas. For events in Cincinnati, check out the Juneteenth event schedule here: Juneteenth Cincinnati

6/15/2022
State of Ohio v. Timothy Williams
C-210384
Quote from Judge Bock:
Williams was arrested and charged as a delinquent child with conduct that, if he were an adult, would have constituted murder in violation of R.C. 2903.02(A), murder in violation of R.C. 2903.02(B), and felonious assault in violation of R.C. 2903.11, all with two firearm specifications under R.C. 2941.141 and 2941.145. At the time of the alleged conduct, he was 16 years old.
The juvenile court held a mandatory bindover hearing under R.C. 2152.10(A)(1). At the hearing, the state presented testimony that Williams may have sold the firearm used in the offenses. The juvenile court determined that probable cause existed to support the murder and felonious-assault charges, and the firearm specifications. The juvenile court relinquished its jurisdiction and transferred the case to the Hamilton County Court of Common Pleas.
In the common pleas court, the state indicted Williams for 1.) murder in violation of R.C. 2903.02(A) with a firearm specification, 2.) murder in violation of R.C. 2903.02(B) with a firearm specification, 3.) felonious assault in violation of R.C. 2903.11(A)(1) with a firearm specification, and 4.) tampering with evidence in violation of R.C. 2921.12(A)(1).

When the complaint filed in the juvenile court did not allege tampering with evidence and the juvenile court never considered whether probable cause existed for that act, the juvenile court retained exclusive jurisdiction over that act and the adult court lacked subject-matter jurisdiction to convict the child for tampering with evidence.

6/15/2022
Dianna G. Gardner, by and through her daughter and power of attorney, Kelly Strunk v. Ohio Department of Job and Family Services
C-210376
Quote from Judge Crouse:
On March 19, 2019, plaintiff-appellant Diana Gardner entered the Burlington House Rehab and Alzheimer’s Center. At the time of her admission, Gardner owned real property in West Virginia, but had been attempting to sell the property since December 2018. On August 20, 2019, Gardner applied for long-term Medicaid. The Hamilton County Department of Job and Family Services (“HCJFS”) rejected her application because it determined that Gardner’s resources, including the West Virginia property, exceeded $2,000, the Medicaid-eligibility-resource limit.
In October 2019, Gardner appealed the decision and requested a state hearing with the Ohio Department of Job and Family Services (“ODJFS”) in accordance with R.C. 5101.35(B). The hearing officer affirmed HCJFS’s decision. Gardner filed an administrative appeal to the director of ODJFS in accordance with R.C. 5101.35(C). The director affirmed the denial of Gardner’s Medicaid application. Gardner appealed to the Hamilton County Common Pleas Court pursuant to R.C. 5101.35(E). Her case was heard by a magistrate, who affirmed the denial of her Medicaid application. She filed objections to the magistrate’s decision. The trial court overruled the objections and adopted the magistrate’s decision.

The trial court erred in holding that plaintiff’s real property was not subject to exclusion under the reasonable-efforts exclusion and was therefore a countable resource for purposes of determining plaintiff’s Medicaid eligibility; the state of Ohio must determine Medicaid eligibility utilizing criteria that is no more restrictive than federal supplemental security income eligibility criteria, which requires the exclusion of real property that the applicant is making reasonable but unsuccessful efforts to sell.   REVERSED AND CAUSE REMANDED

6/17/2022
State of Ohio v. Courtney Wilson
C-210587
Quote from Judge Winkler:
On December 8, 2020, Detective Brian Brown of the North College Hill Police Department filed the complaint against Wilson based on a recent Mayerson Center interview of the minor victim. The detective additionally filed the minor’s affidavit in support of the complaint, which detailed an event on September 19, 2020.
On the same day the detective filed the complaint and affidavit, the detective also filed a warrant for Wilson’s arrest. Believing that he had no current address for Wilson, despite efforts to find one, the detective included no address on the warrant.
Of relevance, the victim’s mother told Detective Brown that Wilson no longer resided at the “last known” address listed for Wilson in “TLO,” the “LexisNexis-type system” used by the North College Hill Police Department. The detective tried to contact Wilson by phone, but learned the first number he located had been disconnected. After obtaining a second number through a search in TLO, the detective called that number and then left a message when no one answered. He later sent a text message to the phone number and received no response. All of the detective’s efforts to locate Wilson and inform him of the charge ceased after the detective filed the warrant.

The trial court erred in granting defendant’s motion to dismiss the complaint on constitutional speedy-trial grounds:  the court failed to consider all the factors set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), including the absence of some particularized evidentiary prejudice from the almost nine-month postaccusation delay, and a consideration of all the factors weighed against a constitutional violation. JUDGMENT: REVERSED AND CAUSE REMANDED   

6/17/2022
Joshua Fikes v. Estate of Joseph Fikes, III, Gregory Fikes
C-210515
Quote from Judge Bock:
In February 2020, Joseph Fikes, III, (“Decedent”) lost his three-year battle with pancreatic cancer. In January 2020, with his health in decline, Decedent and his brother Gregory Fikes hired attorney Norma J. Davis to draft his will. Decedent left behind four children—Joshua Fikes, Joseph Fikes, IV, Kimberly Porter, and Michele Porter. Decedent appointed Gregory to serve as the executor. In April 2020, Gregory offered Decedent’s will for probate.
In his will, Decedent left his daughters $3,000 each. He left his friend Jernice a car, household goods, and $2,000. But the bulk of his assets were left to Gregory with instructions to divide those assets equally between Kimberly and Michele. At the time, both Joseph and Joshua were incarcerated and both were omitted from the will. Before his death, Decedent explained to Joseph that he excluded Joseph and Joshua from the will because Davis advised him that the state would seize their inheritance.

The trial court’s grant of summary judgment in favor of defendants, estate and executor, was proper when the evidence sufficiently rebutted the presumption of the executor’s undue influence over the decedent, and plaintiff’s evidence failed to show any actual undue influence over the decedent.
        The trial court appropriately found no presumption of undue influence by the decedent’s attorney when the attorney was not a named beneficiary in the will. JUDGMENT:  AFFIRMED

6/17/2022
State of Ohio v. Tiana Bingham
C-210434
Quote from Judge Bock:
Bingham was charged with aggravated menacing after Joelle Armstead reported to Cincinnati police that Bingham had threatened her.
Bingham had been scheduled for trial in May and June 2021, but the trials did not go forward due to a police officer being unavailable one day and the prosecuting witness being unavailable on the other day.
At a July 2021 trial setting, the court stated that it had an appointment at 2:00 p.m. that day. The court offered to start the trial and continue it in progress, but the prosecuting witness had to leave. Bingham orally moved for dismissal, pointing to the unavailability of the prosecuting witness and a police officer at the two previous settings and the court’s unavailability that day. Bingham did not assert her speedy-trial rights. The court denied her motion, stated that the continuance was at the court’s request, and that it would toll the speedy-trial time under R.C. 2945.72.

The trial court did not err by convicting defendant, who had been charged with menacing under R.C. 2903.21(A), of the lesser-included offense of menacing under R.C. 2903.22 where no firearm had been brandished or recovered after defendant made threats against the victim. The trial court did not lose its way and create a manifest injustice of judgment as it was in the best position to determine whether the victim’s testimony was credible.
Defendant waived any issue regarding her right to a speedy trial where defendant did not raise the issue below. JUDGMENT:  AFFIRMED