First District Friday Roundup (7/15)

The Cincinnati Bar Association and HCLL are teaming up for a book club on Thursday, July 21 from 12-1 pm to discuss The Storied Life of A.J. Fikry by Gabrielle Zevin. Come up to the library to get a copy of the book today (while supplies last)!

07/06/2022
In re: A.D., Jr.
C-220128
Quote from Judge Zayas:
On April 2, 2019, HCJFS filed a complaint for temporary custody of A.D. The complaint alleged that A.D. had undiagnosed behavioral concerns that required intensive and constant care. It further alleged that A.D. was diagnosed with Sensory Disorder, was believed to be an autistic child, was non-verbal, and appeared to be developmentally delayed. Regarding mother, the complaint alleged that she was currently homeless and unable to provide for A.D.’s basic needs. Regarding father, the complaint alleged that he was employed as a truck driver and was gone for months at a time, was without stable housing, and was not financially prepared to care for A.D.’s special needs. Interim custody was granted to HCJFS that same day and a guardian ad litem was appointed.

The evidence before the trial court was sufficient to find, by clear and convincing evidence, that a grant of permanent custody to Hamilton County Job and Family Services was in the child’s best interest where the evidence showed that the child had significant special needs and showed that father had few visits with the child, had not attended any of the child’s medical appointments or become involved in the child’s care, and had not taken any affirmative steps to learn about the child’s special needs or how to care for the child.         The trial court did not err in finding that father abandoned the child where father admitted that he had gone more than 90 days with no contact with the child and did not provide a reason for not contacting the child during these periods. 
JUDGMENT:  AFFIRMED

07/06/2022
Teresa Alexander & Daniel Deters, Co-administrators of the Estate of Jordan Alexander v. Tiffany Davis, Dayton Corrugated Packaging Corp., Q5 Talent, L.L.C., Hire Solution, L.L.C.
C-210461
Quote from Judge Crouse:
In October 2017, defendants-appellees Q5 Talent, L.L.C., and Hire Solution, L.L.C., (collectively “Q5”) entered into an agreement with defendant Dayton Corrugated Packaging Corporation (“DCPC”) to provide temporary workers to DCPC. Per the agreement, Q5 would pay the worker and invoice DCPC for the cost. The worker was to be considered an “independent contractor” to DCPC. Tiffany Davis was hired by Q5 and placed in a pool of applicants for open commercial trucking positions with DCPC. DCPC selected Davis for a position.
On August 14, 2018, Davis was assigned by DCPC to drive a route in Cincinnati, Ohio. She was driving a tractor trailer leased by DCPC that displayed DCPC’s Public Utilities Commission of Ohio (“P.U.C.O.”) number and DCPC’s United States Department of Transportation (“D.O.T.”) number. Davis illegally drove the tractor trailer eastbound on Columbia Parkway 1 and allegedly attempted an illegal left turn or U-turn. As Davis was making the turn, Jordan Alexander drove her motorcycle over the crest of a hill eastbound on Columbia Parkway and collided with the tractor trailer. Alexander died of her injuries at the scene.
Q5 moved for summary judgment on all claims against it on the basis that Davis was a statutory employee of DCPC at the time of the crash, and therefore, Q5 could not be held liable pursuant to the Ohio Supreme Court’s decision in Wyckoff Trucking, Inc. v. Marsh Bros. Trucking Serv., Inc., 58 Ohio St.3d 261, 569 N.E.2d 1049 (1991). The trial court granted Q5’s motion for summary judgment. Plaintiffs filed a motion for reconsideration regarding their claim for negligent hiring and retention. The court denied the motion and amended its judgment entry to certify that there was no just reason to delay an appeal.

The trial court erred in granting defendant’s motion for summary judgment based on the statutory-employment doctrine because that doctrine only applies between the victim and the carrier-lessee whose placards are on the side of the tractor-trailer rig at the time of the vehicle accident.  
JUDGMENT:   REVERSED AND CAUSE REMANDED

07/08/2022
State of Ohio v. Ronald Martin
C-210644
Quote from Judge Winkler:
Petitioner-appellant Ronald Martin appeals the Hamilton County Common Pleas Court’s judgment denying his petition under R.C. 2953.21 et seq. for postconviction relief and his motion for a new trial. Upon our determination that the trial court had no jurisdiction to entertain the petition or the new-trial motion, we affirm the judgment as modified to dismiss the petition and the new-trial motion.
In 2014, following a bench trial, Martin was convicted of the rape and kidnapping of a child victim and sentenced to an aggregate prison term of 40 years to life. We affirmed his convictions and sentence on appeal. State v. Martin, 1st Dist. Hamilton No. C-150054, 2016-Ohio-802. In holding that his conviction for rape was supported with sufficient evidence and not against the weight of the evidence, we held that “in light of the fact that Martin admitted to the conduct, and his version of events was corroborated by the victim and by the video surveillance evidence, the trial court did not err by failing to consider the lack of DNA evidence dispositive.” Id. at ¶ 22.

The common pleas court properly denied defendant’s R.C. 2953.21 et. seq. petition for postconviction relief without an evidentiary hearing because the court had no jurisdiction to entertain the claims:  the petition was not timely filed, R.C. 2953.21(A)(2), and the petition did not satisfy the R.C. 2953.23 jurisdictional requirements for entertaining a late postconviction petition. 

The common pleas court properly denied defendant’s Crim.R. 33(A) motion for a new trial without an evidentiary hearing because the court did not have jurisdiction to entertain the motion:  the motion was not timely filed and leave under Crim.R. 33(B) to move for a new trial out of time was not sought. See State v. Howard, 1st Dist. Hamilton No. C-210285, 2022-Ohio-2159, ¶ 23.   
JUDGMENT:  AFFIRMED AS MODIFIED

07/08/2022
State of Ohio v. Shauna Michelle Sulken
C-210577
Quote from Judge Crouse
Defendant-appellant Shauna Sulken appeals her minor misdemeanor conviction for a zoning violation. In two assignments of error, Sulken contends that her conviction must be reversed because she did not violate the Delhi Zoning Resolution (“zoning resolution”). For the reasons that follow, we sustain Sulken’s first assignment of error in part, reverse the decision of the trial court, and discharge Sulken from further prosecution. Our disposition of Sulken’s first assignment of
error renders moot her second assignment of error and we decline to address it. See
App.R. 12(A)(1)(c).

The trial court erred in convicting defendant of a zoning violation pursuant to R.C. 519.23, for operating dirt bikes on her property, where the local zoning resolution could not reasonably be construed to prohibit the activity.
JUDGMENT:  REVERSED AND APPELLANT DISCHARGED

07/08/2022
State of Ohio v. Bryan Strietelmeier
C-210409
Quote from Judge Bergeron
Well past midnight on September 23, 2020, Rhonda Mapes’ doorbell began ringing. Not expecting company at such a late hour, Ms. Mapes peered out the door and saw a man she did not recognize. When the man continued to ring the bell for five minutes or so, Ms. Mapes called her daughter in a frazzled state, concerned that he might attempt to break in. She relayed real time updates to her daughter on the unwanted visitor’s movements: he searched under the flowerpots on the porch; he wandered around Ms. Mapes’ car, pulling the door handle to see if it would open; he stared into the windows of her car; he came back and rang the doorbell several more times; and finally, he returned to his own car (parked in Ms. Mapes’ driveway) and drove across the street into a neighbor’s driveway. At some point during this phone conversation, Ms. Mapes’ daughter received a third call via call-waiting, informing them that another neighbor had called the police, who were en route to investigate.
Around 2:15 a.m., the same man returned to Ms. Mapes’ home and again started ringing thedoorbell. This time, Ms. Mapes immediately called 9-1-1 and rushed downstairs to wake up her husband. Ms. Mapes asked the 9-1-1 operator to send officers quickly because the stranger—now identified as Mr. Strietelmeier— was back, and he was peering through the glass, beating on the frame of the door, and jerking the door handle. The Mapeses watched out the window as Mr. Strietelmeier walked towards the rear of their home and disappeared behind a Penske box truck parked in their driveway. Officers arrived shortly thereafter and arrested Mr. Strietelmeier near the truck.

Trial court did not err in convicting defendant of criminal trespass where evidence showed he knowingly entered onto property without permission of homeowner, and where defendant was previously warned by police officers not to return to the area. 
JUDGMENT:  AFFIRMED

07/08/2022
Charles Menkhaus v. Nicole Fenyo Menkhaus
C-210219, C-210430
Quote from Judge Zayas:
Asserting five assignments of error for our review, defendant-appellant Nicole Fenyo Menkhaus (“wife”) brings this appeal to challenge the decree of divorce entered by the Hamilton County Court of Common Pleas, Domestic Relations Division, and the subsequent judgment of the court which granted attorney fees to plaintiff-appellee Charles Menkhaus (“husband”). For the following reasons, we overrule assignments of error one through four relating to the decree of divorce but sustain the fifth assignment of error relating to the grant of attorney fees. Accordingly, the judgment of the trial court is affirmed in part and reversed in part.

The trial court did not err in finding that husband’s business interests were his separate property under the parties’ prenuptial agreement where the agreement provided that any property referred to in the attached Schedule B was husband’s separate property, husband’s only business in existence at the time of the marriage was referred to in the Schedule B, and the agreement additionally provided that all property acquired by husband after the marriage or in exchange for his separate property would be his separate property.   
The trial court did not err in finding that wife failed to meet her burden to show that enforcement of the spousal-support provision contained in the parties’ prenuptial agreement would be unconscionable where the court expressly considered the required factors under R.C. 3105.18(C) and made findings which were supported by the record, and where such findings did not show that wife would suffer any harm, hardship, or disadvantage as a result of enforcement of the provision as the parties had always maintained separate finances, did not create a marital standard of living, were not dependent on each other financially during the marriage, and could each maintain income consistent with the lifestyle they had been independently living.    
The trial court did not err in granting husband’s motion for a protective order under Civ.R. 26(C), which allows a trial court to limit the scope of discovery to that which is proportional to the needs of the case to prevent undue burden or expense, where husband asserted that wife’s “wide-ranging” discovery request would be burdensome and time-consuming, the trial court ordered the parties to turn over any information it found to be relevant to the precise issues before it and did not grant the protective order until the conclusion of all hearings related to the parties’ prenuptial agreement.    
The trial court did not err by granting husband’s motion for return of a computer and cell phone where there was a dispute between the parties on whether the items were gifts to wife, and the record indicated that the parties could not reach an agreement which would allow wife to keep the items.  
The trial court erred by granting husband’s motion for attorney fees under R.C. 2323.51 as it was not absolutely clear under existing law that no reasonable attorney could argue the claims advanced by wife when the arguments hinged on either interpretation of the prenuptial agreement or a credibility determination. 

JUDGMENT:     AFFIRMED IN PART AND REVERSED IN PART AND CAUSE REMANDED 

7/13/2022
State of Ohio v. Christopher Sowders
C-220114
Quote from Judge Myers:
[O]n or about August 11, 2021, at approximately 7:00 a.m., behind a residence located at 454 Kitty Lane, Delhi Township, the victim, Elizabeth Ventre was looking for her dogs when she was confronted by Defendant and an unknown person wielding guns; They pointed their guns at her and forced her back up the steps and through the door into the house. Once they were inside and the door was closed, the two began demanding money from Ms. Ventre and telling her they knew her son had a safe and kept money at her residence. They tried to zip-tie her hands together, but did so incorrectly. When Ms. Ventre tried to flee out the door, they knocked her down and she hit her head.
While the two men forced Ms. Ventre to drive around to banks and ATM’s [sic] with her, they used her car. After they had obtained several thousand dollars of Ms. Ventre’s money, they parked in a Kroger parking lot and told her [to] put her head down and not get up for ten minutes. They took her personal information and told her to [sic] that if she ever told anyone what had happened, they would kill her. They then got out of the car and disappeared.

While a trial court must find that the state established the conditions set forth in R.C. 2937.222(B) by clear and convincing evidence before denying an accused bail, an appellate court, when reviewing the trial court’s determination, examines the record to determine if the trial court had sufficient evidence before it to satisfy the clear-and-convincing standard.        Where the record contained sufficient evidence in support of the trial court’s findings of the conditions set forth in R.C. 2937.222(B) to satisfy the clear-and-convincing standard, the trial court did not err in granting the state’s motion to hold defendant without bail. 
JUDGMENT:   Affirmed

07/13/2022
In re: J.M.
C-210514
Quote from Judge Bergeron:
In this parental-custody case, we consider whether the trial court properly designated plaintiff-appellee (“Father”) the residential parent of J.M. for purposes of school registration. Defendant-appellant (“Mother”) challenges the modification to the shared-parenting plan as an abuse of discretion, arguing the court arbitrarily assumed that prior housing instability rendered future school changes inevitable. Because credible evidence exists in the record from which the trial court could reach its decision, we affirm the juvenile court’s judgment.

Where competent and credible evidence existed that the modification was in the best interest of the child’s education, the trial court did not abuse its discretion in considering the mother’s past history and modifying the shared-parenting plan to designate father as the residential parent for school purposes.   
JUDGMENT:  AFFIRMED

07/13/2022
State of Ohio v. Sean Stockstill-Reece
C-210445
Quote from Judge Bock:
Sean, his mother, Carol Stockstill, and his sister, Johnnie Stockstill, lived together. At a bench trial, Johnnie testified that she was heating up food when Sean came in the front door and tried to talk to her. Her mother warned her that Sean had been drinking, so she told Sean, “Don’t talk to me.” Sean responded, “Fine, then get out of my way,” walked up to Johnnie, and pushed her. Johnnie called the police.
Earlier, Carol had left the house after Sean had begun to drink alcohol and, when he drinks, he always “gets in these modes [and] he can’t control himself.” When Carol returned home, Sean and Johnnie were arguing. When Carol intervened, Sean “got in her face” and yelled at her. Carol testified, “[b]ecause when he’s in that mode, I don’t know what he’s going to do,” she sprayed him with pepper spray.

Defendant’s conviction for domestic violence was not against the manifest weight of the evidence where the state presented credible testimony that defendant physically accosted his mother and the record demonstrated that defendant did not act in self-defense.

JUDGMENT: AFFIRMED

07/13/2022
Robert Bohannon II v. Nyshia Lewis (f.k.a. Bohannon)
C-210316, C-210332
Quote from Judge Crouse:
Mother and father were married in 2009 and have four minor children together: one son and three daughters. Father filed a complaint for divorce in 2018. A decree of divorce was entered in 2019, which named mother residential parent and legal custodian of all four children. Father had parenting time on alternating weekends from Friday after school or daycare until Monday morning, and on Wednesday evenings, in addition to holiday and extended parenting time in line with the court’s standard parenting order. Father was also ordered to pay child support in the amount of $1,231.22 per month.
While there has been nearly continuous conflict in this case since the complaint for divorce was filed, the procedural events relevant to these appeals began on May 15, 2020, when father filed a motion to modify parenting time. On the same day, he filed a “motion to show cause (contempt),” alleging that mother denied him parenting time and withheld the children’s medical information. On June 9, 2020, mother filed a “motion for contempt/back child support,”1 alleging father had been harassing her and not abiding by the court order for parenting time. On July 28, 2020, father filed a motion for an emergency hearing and temporary custody, and an “amended motion to modify parenting time—motion to reallocate parental rights and responsibilities,” asking the court to name him the residential parent and legal custodian of the children.

The trial court did not abuse its discretion in denying father’s motion to reallocate custody because the court’s decision that it was in the children’s best interest for mother to retain legal custody is well-supported in the record.
The trial court did not abuse its discretion in granting father additional parenting time because the record, including the summary and recommendation of the social worker, supported the court’s best-interest determination pursuant to R.C. 3109.051.
The trial court did not abuse its discretion in reducing father’s child-support obligation by 100 percent, a deviation from the recommended guidelines, when  father’s parenting time had been modified to exceed 147 overnights per year, pursuant to R.C. 3119.231, and the trial court entry’s set forth the necessary findings to support the deviation.
The trial court did not abuse its discretion in denying father’s motion to show cause (contempt) because the trial court is empowered to “determine the kind and character of conduct that constitutes contempt.” Fisher v. Fisher, 7th Dist. Harrison No. 17 HA 0008, 2018-Ohio-2477, ¶ 25.

JUDGMENT:  AFFIRMED

07/15/2022
State of Ohio v. Clifton Harris
C-210628
Defendant-appellant Clifton Harris appeals his conviction for domestic violence in violation of R.C. 2919.25(A). In his sole assignment of error, he argues his conviction was against the manifest weight of the evidence. Harris was charged with domestic violence after his wife, Naomi Craig, reported to Cincinnati Police Officer Nicolino Stavale on the evening of February 1, 2021, that Harris had harmed her earlier in the evening at the family’s home after an argument. At trial, Craig testified to the events, including that, in the presence of the children, Harris had hit her, pushed her down, choked her, and pulled out some of her hair. Photographs of some of her injuries were admitted into evidence. One photo showed marks on her neck.
Accordingly, we overrule the assignment of error and affirm the trial court’s judgment.
A certified copy of this judgment entry shall constitute the mandate, which shall be sent to the trial court under App.R. 27. Costs shall be taxed under App.R. 24.

07/15/2022
Elizabeth Ijakoli v. Gabriel Alungbe
C-210366
Quote from Judge Bock:
Alungbe and plaintiff-appellee Elizabeth Ijakoli were married in 2009 and subsequently had two children together. In 2017, Ijakoli filed for divorce. Two years later, the trial court issued a divorce decree and designated Ijakoli as the residential parent of their children. In the decree, Alungbe was granted weekly parenting time. The parties filed numerous postdecree motions to enforce and modify the decree, to modify parenting time, for psychological testing, and for contempt. While Alungbe periodically had legal representation, he was pro se at all times relevant to this appeal.
In August 2020, Alungbe filed a postdecree motion to modify the custody order and alleged that their children were being neglected. The following week, Ijakoli filed postdecree motions to hold Alungbe in contempt of the decree and to modify parenting time. Days later, Alungbe moved for an expedited hearing on a motion to modify the “parenting order to grant Defendant full custody” of the children.

            The trial court’s order denying modification of a child custody order issued in a divorce decree was a final appealable order under R.C. 2505.02(B)(2) because it affected a substantial right and was made in a special proceeding.
While the trial court’s indiscriminate and wholesale exclusion of defendant’s evidence was an arbitrary exercise of discretion, defendant was able to present his case through testimonial evidence and therefore suffered no material prejudice.
                   The trial court’s exclusion of defendant’s evidence did not violate defendant’s due process rights because defendant was allowed to present testimonial evidence, and therefore, was afforded a meaningful opportunity to be heard.
               The trial court did not abuse its discretion when it denied defendant’s motion to compel the production of the GAL’s records under Loc.R. 10.9(M) of the Court of Common Pleas of Hamilton County, Domestic Relations Division where defendant’s need for the GAL’s investigative file was unclear when defendant received a copy of the GAL’s report and was able to question the GAL about this report at trial.
JUDGMENT:      AFFIRMED