First District Friday Roundup! (7/29)

State of Ohio v. Porter Mitchell
Quote from Judge Myers:
Defendant-appellee Porter Mitchell was arrested and charged with carrying a concealed weapon and improper handling of a firearm in a motor vehicle after police conducted a warrantless search of a vehicle during a traffic stop and recovered a loaded handgun from under the front passenger seat where Mitchell had been sitting. Mitchell filed a motion to suppress the physical evidence and statements obtained during the traffic stop, and the trial court granted the motion after a hearing. The state now appeals.
Because the search of the vehicle was justified under the automobile exception to the warrant requirement, we hold that the trial court erred in granting the motion to suppress, and we reverse the judgment of the trial court.

The trial court erred by granting defendant’s motion to suppress evidence obtained in a vehicle search during a traffic stop:  the smell of marijuana emanating from the stopped vehicle, defendant passenger’s admission that he possessed drug paraphernalia, and another passenger’s voluntary production of a small amount of marijuana provided the police with probable cause to search the vehicle under the automobile exception to the warrant requirement.
Probable cause to search a vehicle based upon the smell of marijuana did not dissipate upon defendant passenger’s admission that he had a bong in the vehicle.    JUDGMENT:  REVERSED AND CAUSE REMANDED

Elizabeth A. Cross Devito v. Richard L. Devito
Quote from Judge Bock:
Wife and Husband were married on October 10, 2014. The following year, Wife gave birth to their daughter. But in 2016, Husband was arrested and jailed for producing child pornography. Two years later, he pleaded guilty to one count of producing child pornography. See United States v. DeVito, S.D.Ohio Nos. 1:16-CR115 and 1:121-CV-093, 2021 U.S. Dist. LEXIS 201884 (Oct. 19, 2021).
In 2019, the federal trial court sentenced Husband to a 30-year term of incarceration in a federal prison in South Carolina. Id. That year, Wife filed for divorce. In 2021, the magistrate held a hearing to determine the division of property and parental rights. The evidence consisted of financial documents, text messages, letters from Husband to Wife, and testimony from Wife, Husband, and Husband’s mother.

The domestic relations court’s parenting-time order setting defendant’s parenting time at plaintiff’s discretion was reasonable and just because the order was supported by the court’s R.C. 3109.051(D) findings, the circumstances surrounding defendant’s incarceration, and the need for a flexible schedule.
The domestic relations court erred when it failed to determine whether defendant’s inheritance was separate or marital property as required by R.C. 3105.171.
The domestic relations court’s distributive award, issued to plaintiff pursuant to R.C. 3105.171(E)(4), was unreasonable and arbitrary when the record contained no evidence of any financial misconduct by defendant, and the court’s findings did not support an award under any other section of the statute.

State of Ohio v. Stanley Jordan
Quote from Judge Bock:
Jordan was indicted on two counts of murder in violation of R.C. 2903.02(A) and (B), and two counts of felonious assault in violation of R.C. 2903.11(A)(1) and (A)(2). The state alleged that Jordan murdered Kenneth Bradley at Bradley’s home by stabbing him with a knife. Further, the state alleged that the following morning, Jordan stabbed Ocie Cutts, causing serious injury.
Jordan moved to have counts 1 and 2, the counts involving Bradley, severed from counts 3 and 4, the counts involving Cutts. Jordan argued that the jury would not be able to separate the evidence for each incident, which would be prejudicial to Jordan. The trial court denied the motion, stating that appropriate jury instructions would be given to prevent any prejudice.

The trial court did not err by denying defendant’s motion to sever the felonious assault counts from the murder counts where the record reflects that the evidence regarding the murder counts was simple and distinct from the felonious assault counts, the trial court found no indication that the jury did not follow instructions to consider the counts separately, and, because the convictions on each count were strongly supported by the evidence, the outcome of the proceedings would not have been different had the counts been severed.
Defendant’s convictions were supported by sufficient evidence and were not contrary to the weight of the evidence where testimony reflected that defendant chased the decedent with a pocketknife, decedent “dart[ed] out,” “ran funny,” and was sitting “slumped” on the porch of his home following a “tussle” with defendant, and defendant repeatedly told an eyewitness not to talk to the police.
The trial court did not err by finding that defendant did not act in self-defense where the record reflected that defendant stabbed the unarmed victim five times while engaged in a fist fight.
Defendant did not receive ineffective assistance of counsel where the record showed that engaging a different crime scene reconstructionist would not have changed the verdict as the evidence overwhelmingly supported the convictions.

Timone Andrew v. Aaliyah Dennis
Quote from Judge Bock:
Plaintiff-appellant Timone Andrew challenges a child-support order issued by the juvenile court in which the juvenile court deferred ruling on parenting time. But the juvenile court subsequently adopted and entered an agreed sharedparenting plan, which mooted this appeal. Because the issue of parenting time is moot, we must dismiss the appeal.

Plaintiff’s appeal of the juvenile court’s child support order that failed to include a parenting-time order was made moot by the parties’ shared-parenting plan, which was accepted and entered by the juvenile court.

State of Ohio v. Larry Jackson, Jr.
Quote from Judge Myers:
Defendant-appellant Larry Jackson, Jr., appeals from the trial court’s entry convicting him, following a bench trial, of four counts of rape. In this appeal, Jackson challenges the trial court’s denial of his motion to suppress, the performance of his trial counsel, the trial court’s granting of the state’s motion to amend the indictment, and the sufficiency and the weight of the evidence supporting his convictions.
Finding the assignments of error raised by Jackson to be without merit, we affirm the trial court’s judgment.
In August 2019, K.B., who was 12 years old at the time, disclosed to a family member that Jackson, who was her cousin, had committed various sexual offenses against her several years earlier. The offenses occurred while K.B. and Jackson were both at the home of her great-grandmother (who was also Jackson’s grandmother) Linda Coleman.
After learning of K.B.’s allegations, Jackson voluntarily went to the police station to speak with Cincinnati Police Detective Aaron Roach. Detective Roach read Jackson his Miranda rights prior to interviewing him. Jackson told Detective Roach that he stayed at Coleman’s home for a short period of time several years earlier, but that he was very seldom at the house during that time, and that Coleman let him sleep in her bedroom while he stayed there. Jackson was not clear on the exact time frame in which he lived with Coleman, but believed it was in 2015 or 2016. When asked about K.B.’s allegations, Jackson adamantly denied them.

Where the waiver of defendant’s Miranda rights was made knowingly, voluntarily, and intelligently, and where defendant’s confession was not coerced, the trial court did not err in denying defendant’s motion to suppress.    
Where the amendment to the indictment did not change the name or identity of the offenses, the trial court did not abuse its discretion in granting the state’s motion to amend the indictment.   
Where allegations of ineffectiveness are based on facts outside the record, an appellate court cannot determine whether ineffective assistance of counsel occurred.
Trial counsel was not ineffective for failing to object to the admission of a videotaped interview between a child victim and a social worker where the child’s statements in the interview were not testimonial and did not violate the Confrontation Clause and where the child’s statements were admissible under Evid.R. 803(4) because they were made for purposes of medical diagnosis and treatment. 
Defendant’s convictions for rape were supported by the sufficiency and the weight of the evidence. 
JUDGMENT:  Affirmed

State of Ohio v. Devin Galinari
Quote from Judge Bock:
In the midst of a mental-health crisis, Galinari used an aluminum bat to damage the windows of a church and car windshields in a nearby dealership parking lot. Galinari carried the bat to a Steak ‘n Shake and chased three teenagers through the restaurant. He struck one of the teenagers in the abdomen before they were able to lock themselves in a small storage room. The restaurant manager, Ronald Bradley, attempted to intervene. Galinari struck Bradley in the head repeatedly, causing severe head trauma.
Galinari was arrested and charged with multiple counts of felonious assault and vandalism, and one count of attempted murder. Initially, the trial court found Galinari incompetent to stand trial. After he was “restored to competency,” he pleaded guilty to two counts of felonious assault in violation of R.C. 2903.11, and two counts of vandalism in violation of R.C. 2909.05.
At the sentencing hearing, the court acknowledged Galinari’s history of mental-health and addiction issues, his inability to make choices, and the need to both punish Galinari and protect the public. Beginning with the two vandalism counts, the court imposed two 12-month concurrent sentences. For the two felonious-assault counts, the court imposed two six-year sentences. The two six-year sentences were imposed consecutive to each other and the two concurrent 12-month sentences. All told, the court imposed an aggregate 13-year term of incarceration.

            The trial court’s finding that consecutive sentences were not disproportionate to the seriousness of defendant’s conduct and the danger defendant posed to the public satisfied the requirements established by R.C. 2929.14 for imposing consecutive sentences.

State of Ohio v. Kenedy Smith
C-210602, C-210609, C-210621
Quote from Judge Crouse:
Smith was indicted on January 19, 2021, for failing to comply with an order or signal of a police officer, a felony of the third degree, pursuant to R.C. 2921.331(B), stemming from a 17-minute police chase on Interstate 75. The charge carries between nine and 36 months in the Ohio Department of Corrections, and a mandatory driver’s license suspension of three years to life. In August 2021, Smith pleaded guilty, and the trial court accepted the plea.
At sentencing, Smith sought “an extensive period of probation” with mental-health treatment, relying in part on a mental-health evaluation completed by the Court Clinic prior to sentencing. The state sought an undefined “term of confinement in the Ohio Department of Corrections.”
After considering the purposes of felony sentencing under R.C. 2929.11, the seriousness and recidivism factors under R.C. 2929.12, and offense-specific factors under R.C. 2921.331(C)(5)(a), the court sentenced Smith to 24 months in the Ohio Department of Corrections, with credit for 190 days served, and imposed a five-year driver’s license suspension, with costs and fees waived. Smith timely appealed.

Pursuant to R.C. 2953.08(G)(2), the appellate court had no authority to review the trial court’s imposition of a 24-month prison term because the statute precludes review of defendant’s argument that the trial court incorrectly weighed the R.C. 2929.11 and 2929.12 factors and imposed a sentence unsupported by the record.

State of Ohio v. Natalie Ridley
Quote from Judge Winkler:
The record shows that on June 21, 2020, Ridley was working as a state tested nursing assistant (“STNA”) at Burlington House Nursing Home, a lock-down facility for patients with dementia and Alzheimer’s disease. She was tending to Donald Knueven, a resident of the facility. He had suffered a stroke, which had led to dementia while in his late 50s. Unlike most of the residents, he was not frail and elderly. Witnesses described him as being between six-feet one inches to six-feet four inches tall and weighing from 170 to 190 pounds. One of nurses testified that he was self-sufficient, mobile, and able to do more for himself than other residents.
On that day, Jonisha Bradley was also working as a STNA. At about 5:00 a.m., she heard a “bunch of yelling,” and she went into the hall to see what was happening. She saw Ridley, who appeared to be upset. Bradley then saw Knueven come out of his room. She noticed that he and Ridley both had blood on them. Ridley called Knueven a “wife beater,” and said, “Don’t put your fucking hands on me.” Bradley described Ridley’s demeanor as “aggressive” and “upset.” She added that, “She was mad. She was angry.” Finally, Bradley testified that as an STNA, she was trained to “walk away” when patients become aggressive.

Where the defendant raised a claim of self-defense, the defendant failed to meet her initial burden of production with evidence that tended to show that she was not at fault in creating the situation where she gave inconsistent accounts of events, and the trial court was entitled to consider those inconsistencies in determining whether she had met her burden.  [But see DISSENT:  The defendant met her burden of production through her cross-examination of witnesses, which showed that she had consistently stated that the nursing-home patient that she was accused of assaulting had started the altercation.]
The defendant’s conviction for patient abuse under R.C. 2903.34(A)(1) was not against the manifest weight of the evidence where the defendant’s versions of events was inconsistent, the patient’s injuries were not consistent with her claim of self-defense, and some of her statements tended to show that she pushed the patient in anger rather than fear.
The trial court erred in imposing a lifetime ban on working in nursing homes as a condition of community control where former R.C. 2929.15(A) provided that the duration of all community-control sanctions could not exceed five years.  

Toni Ewing, Individually and as Executrix of the Estate of Shirley Ewing, and as Personal Representative of her Next of Kin and Beneficiaries v. UC Health, University of Cincinnati Medical Center, LLC, John and/or Jane Doe #1, et al.
Quote from Judge Zayas:
On April 16, 2018, Ewing, the adult daughter of Shirley Ewing, filed a complaint against defendants, among others, alleging three causes of action: a survivorship claim, a wrongful-death claim, and an “emotional harm” claim. The complaint asserted that the action was filed within 180 days of the written notice given to defendants pursuant to R.C. 2305.113, and asserted that the action was voluntarily dismissed in the case numbered A-1504406 on April 17, 2017, and was being refiled in the current action within one year of such dismissal. The claims were based on events alleged to have occurred during Shirley Ewing’s inpatient stay at the University of Cincinnati Medical Center from February 18, 2014, to March 22, 2014. The complaint alleged:
there were deviations from accepted standards of care which
resulted in harm and compensable damages to Shirley Ewing, in
amounts later to be determined, including but not limited to a fracture
of her leg, failure to timely recognize said fracture, surgery, placement
of a rod and pins, additional pain, suffering, mental anguish,
emotional distress, additional expenses, * * * and shortening of life
expectancy * * *.

The complaint further asserted that Shirley passed away on March 25, 2014, and contended that her death was accelerated and wrongful as a result of such deviations in care. The “emotional harm” claim was brought by Ewing in her individual capacity and alleged that Ewing suffered “emotional harm” as the result of being the one who discovered her mother’s broken leg and “other damages” during
the hospitalization.

The trial court did not err in granting judgment on the pleadings in favor of defendant hospital on plaintiff’s claim for negligent infliction of serious emotional distress where the harm alleged was merely emotion harm which is insufficient as a matter of law to sustain such a claim. 
The trial court did not err in in granting judgment on the pleadings in favor of defendant hospital on plaintiff’s survivorship claim where the Ohio Supreme Court has held that the statute of repose is constitutional both when it extinguishes a vested and a nonvested right, and where the Ohio Supreme Court did not announce that its decision in Wilson v. Durrani, 164 Ohio St.3d 419, 2020-Ohio-6827, 173 N.E.3d 448, would have prospective application only.
The trial court erred in granting judgment on the pleadings in favor of defendant hospital on plaintiff’s wrongful-death claim as the medical-claim statute of repose contained in R.C. 2305.113(C) is not applicable to a wrongful-death claim related to the medical diagnosis, care, or treatment of the decedent. 

State of Ohio v. Kevin Smith
Quote from Judge Bergeron:
Following a robbery of a Walgreens pharmacy, Mr. Smith was charged with two counts of robbery. The matter proceeded to a jury trial where the central question was the identity of the perpetrator.
A Walgreens cashier testified that, on the night of the robbery, a man approached the counter—ostensibly with a firearm hidden beneath his shirt—and demanded that he hand over the register’s contents and ten packs of cigarettes on the pain of death. After the store manager was alerted to the situation, the cashier unlocked the register and handed roughly $800 in cash to the man. As police sirens sounded in the distance, the robber fled the store without waiting for his cigarettes.
Upon arrival, a detective reviewed store video surveillance footage and noticed that the perpetrator spoke with a man (later identified as Brandon Super) shortly before the robbery commenced. It appeared that the two individuals knew each other, and Mr. Super exited the store shortly before the robbery commenced.
Based on information provided by Mr. Super, police investigated the nearby Drop-Inn Center for individuals with the surname Smith. After identifying Mr. Smith as a potential suspect, the officers developed a lineup of six people. The cashier picked out Mr. Smith from the lineup as the perpetrator with “83 percent” certainty. Then, at trial, both the cashier and store manager identified Mr. Smith as the perpetrator. The jury ultimately convicted Mr. Smith of two counts of robbery.

           The trial court did not violate the prohibition against hearsay or the Confrontation Clause by admitting testimony that explained the steps in an officer’s investigation, which did not include any statement by a non-testifying person; even if the trial court committed a technical hearsay or Confrontation Clause error, such an error would be harmless because the state presented overwhelming evidence to establish defendant’s guilt.
JUDGMENT:  Affirmed

Natasha Mitchell v. Michael J. Auto Sales
Quote from Judge Crouse:
On November 5, 2020, plaintiff-appellee Natasha Mitchell purchased a used 2005 Chrysler Pacifica “as-is” from defendant-appellant Michael J.’s. Less than one hour later, the vehicle caught fire while she was driving on the highway.
On November 10, 2020, after unsuccessfully attempting to resolve the issue with Michael J.’s, Mitchell filed a complaint in the small claims division of the Hamilton County Municipal Court against “Michael J. Auto Sales dba Weinle Motorsports.” She requested $2,200 in damages—the purchase price of the vehicle.

The trial court’s determination that defendant was negligent in the repair of plaintiff’s just-purchased vehicle was not against the manifest weight of the evidence because the vehicle caught fire ten minutes after plaintiff began driving it for the first time after the repair was made, and the trial court was in the best position to determine whose testimony was most credible.
The magistrate’s fraud finding was against the manifest weight of the evidence because the defendant disclosed the issue with the vehicle to the plaintiff.
Plaintiff purchaser did not have a reasonable opportunity to inspect the vehicle after the repair was made where, after plaintiff test drove the vehicle, defendant car dealer assured plaintiff that it would repair a fuse, the repair was made with a fuse from an older model vehicle, and ten minutes after plaintiff drove her vehicle off the lot it caught fire.