Friday First District Roundup 10-1-21

State of Ohio v. Jade Woodson 
Case # C200363 
Quote from Judge Bock's Opinion:
Defendant-appellant Jade Woodson appeals her criminal-damaging and assault convictions, asserting that the trial court erred by holding a bench trial when Woodson had made a jury demand and never waived that right. Woodson further asserts that the trial court did not have sufficient evidence to find her guilty of criminal damaging, that her conviction for assault was against the manifest weight of the evidence, and that the trial court erred in ordering her to pay restitution. For the reasons stated herein, we reverse the court’s judgments and remand the matter to the trial court.
I. Facts and Procedure.
In March 2019, defendant-appellant Jade Woodson was charged with aggravated burglary in violation of R.C. 2911.11(A)(1). The grand jury returned misdemeanor indictments for aggravated trespassing, assault, aggravated menacing, and criminal damaging. The matter was remanded to the Hamilton County Municipal Court. Woodson timely filed a jury demand.
Before the bench trial, the court asked defense counsel if Woodson had filed a jury demand—counsel responded that she had not. Following the bench trial, the trial court dismissed the aggravated-trespassing and aggravated-menacing charges, but found Woodson guilty of criminal damaging and assault. The court sentenced Woodson. Woodson appealed.

State of Ohio v. Phillip McConnaughey
Case #C200274
Quote from Judge Winkler's Opinion:
Following a jury trial, defendant-appellant Phillip McConnaughey was convicted of aggravated menacing under R.C. 2903.21(A) and menacing under R.C. 2903.22(A). He now appeals, setting forth four assignments of error. We find no merit in his four assignments of error, and we affirm his convictions.
I. Factual Background
The record shows that on December 28, 2019, Calonda Balleau, a realtor for Sibcy Cline, arrived at a property for sale on River Road. Balleau testified that she was dressed professionally in black pants and a blue blouse, and that there was a for-sale sign in the yard. Parking was not allowed on the street, so Balleau parked in the driveway, but she could not pull down very far due to a crumbling retaining wall.
Her client, Carlos Velasquez, who was interested in buying the house as an investment property, arrived a short time later to look at the house. He parked his truck in front of McConnaughey’s property, which was next door to the property for sale.
Balleau and Velasquez went inside the house and toured the property and discussed various maintenance issues. They came out after about five minutes. While Balleau was securing the house and replacing the key in the lockbox, Velasquez went to look at the foundation on the side of the house away from McConnaughey’s property.
Then McConnaughey appeared on the steps of his house and yelled for them to get out of there. Balleau testified that she told him that she was a realtor, she had just finished showing the house and that they were leaving. McConnaughey started to cross his yard and yelled, “Get out of here, you nigger” and “go back to your own country.” As she and Velasquez were trying to leave, he rushed at them, yelling “I’ll kill you, you nigger bitch. Go back to your Section 8.” Balleau stated, “And I was just trying to sell a home. * * * I wasn’t ready for that. I never encountered anything like that. I wasn’t prepared for that at all.” 

State of Ohio v. Rashawn Gatewood 
Case #C190654 
Quote from Judge Crouse's Opinion:
Defendant-appellant Rashawn Gatewood appeals his convictions for felonious assault and having weapons while under a disability. For the reasons set forth below, we affirm the judgment of the trial court.
I. Facts and Procedure
On May 31, 2018, Gatewood shot Dontay Jackson. The following testimony was presented at trial.
Gatewood testified that his 14-year-old daughter told him that 21-yearold Jackson had inappropriately touched her. Jackson was an extended family member of Antwanette King, Gatewood’s girlfriend and the mother of his children. Gatewood and King immediately went to Jackson’s house. Gatewood’s cousin, John Shields, and longtime friend, Chris Marlow, rode with them. Gatewood testified that they had no knowledge of the alleged sexual assault and remained in the vehicle at all relevant times.
Jackson lived with his mother (and King’s cousin), Melinda Brown, and his 17-year-old sister, Je’da Brown, on the second floor of a multifamily house. When Gatewood and King arrived, Je’da and Melinda were present and invited them inside. Gatewood told Melinda that he wanted to speak to Jackson about his daughter. The testimony differed as to what happened next. The state’s witnesses testified that Jackson soon came downstairs, appearing as if he had just awoken. The defense witnesses conversely testified that Melinda called Jackson, and shortly thereafter, he entered through the front door. Upon seeing Jackson, Gatewood asked to talk to him outside. Jackson agreed.

State of Ohio v. William Pennington 
Case #C200358
Quote from Judge Winkler's Opinion:
Defendant-appellant William Pennington appeals the Hamilton County Common Pleas Court’s judgment overruling his Crim.R. 32.1 motion to withdraw his guilty pleas to murder and two counts of aggravated robbery. We affirm the court’s judgment.
Pennington was indicted in 2011 on three counts of aggravated robbery and robbery, four counts of having weapons while under a disability, and single counts of aggravated murder, carrying a concealed weapon, and possession of cocaine, in connection with three incidents in a single week: the robberies of two different pizza-delivery drivers and the shooting death of a restaurant cashier during an armed robbery. Six months later, Pennington was convicted upon guilty pleas to a reduced charge of murder and two counts of aggravated robbery and was sentenced to agreed concurrent prison terms totaling 18 years to life. He did not appeal his convictions.
In 2019, Pennington filed with the common pleas court a Crim.R. 32.1 motion to withdraw his guilty pleas. In this appeal from the denial of that motion, Pennington advances five assignments of error. Those assignments of error, distilled to their essence, challenge the common pleas court’s exercise of its discretion in denying, and in declining to conduct an evidentiary hearing on, his motion to withdraw his guilty pleas, when newly discovered evidence demonstrated that his guilty pleas had been the unknowing and involuntary product of his trial counsel’s ineffectiveness in advising him to plead, and that the common pleas court’s decision denying the motion had been based on its misperception of the evidence of record and its consideration of evidence outside of the record. We address the assignments of error together and find that they are not well taken.

State of Ohio v. Korkor January 
Case #C200333 
Quote from Judge Bock's Opinion:
Defendant-appellant Korkor January appeals his criminal-damaging conviction, asserting that the conviction was contrary to the manifest weight of the evidence. For the following reasons, we affirm the trial court’s judgment.
I. Facts and Procedure
DeJuan McClure testified that he witnessed January approach McClure’s vehicle holding an object, slash the tire on the front driver’s side of McClure’s vehicle, “duck[] into the bushes,” and run down the street. McClure parks his vehicle “right along the side” of his house. The only thing that separates his vehicle from his house is the walkway that goes down the entire length of his house. McClure further testified that he saw January’s face and that he knows January’s body language, structure, and build. McClure stated that he had been living next door to January since 2016.
Officer Kevin Martin testified that he interviewed McClure, who told him that he saw from his kitchen window January slash the tire. Martin also testified that the clothing that the person in McClure’s surveillance video was wearing “looked pretty much like” what January was wearing on the day of arrest.
On cross-examination, Martin testified that McClure had told him that he witnessed January puncture the tire but that January denied puncturing the tire. January asked McClure whether the person in the video was wearing a “nondescript, gray sweatshirt.” Martin responded, “I would say that it was–yeah, it wasn’t a unique, as far as I can remember, sweatshirt.”

Samantha Hall v. State of Ohio 
Case #C200308
Quote from Judge Bergeron's Opinion:
Samantha Hall is a sexual-offender registrant from the state of Kentucky, who settled in Ohio in 2012 following her release from prison. After receiving an automatic classification as a sexual predator in Ohio, she petitioned for reclassification under former R.C. 2950.09(F) and removal of her sexual-offender classification imposed by the Hamilton County sheriff. The trial court denied her petitions, prompting this appeal. In light of the record at hand, we hold that the Kentucky offense of sodomy in the second degree is substantially similar to the Ohio offense of gross sexual imposition under R.C. 2907.05(A)(4), and thus we affirm the judgments of the trial court. I.
In 1992, a Kentucky court convicted Ms. Hall of three counts of sodomy in the second degree. The record established that Ms. Hall forcibly committed sexual acts on her 11-year-old niece and her own infant children. As a result of her convictions, Ms. Hall was required to register every 90 days for life on the Kentucky Criminal Offender Registry.

State of Ohio v. David Richardson 
Case #C200289
Quote from Judge Zayas' Opinion:
David Richardson appeals from the judgment of the Hamilton County Court of Common Pleas finding him guilty of community-control violations in the cases numbered B-1803045 and B-1805949, revoking his community control, and sentencing him to a prison term of 12 months in each case to be served concurrently. For the following reasons, we affirm the trial court’s judgment.
Procedural and Factual Background
In November 2018, David Richardson pled guilty to two counts of trafficking in cocaine in the cases numbered B-1803045 and B-1805949, both felonies of the fourth degree. At the sentencing hearing, Richardson admitted to regularly using cocaine and agreed to participate in a drug treatment program. The trial court placed him on two years of community control that included intensive supervision and drug treatment. The court notified Richardson that if he violated the terms of his community control, he would be incarcerated for 18 months on each case for a maximum potential aggregate sentence of 36 months.
On July 15, 2019, Richardson was indicted for trafficking in and possession of cocaine, trafficking in and possession of heroin, and aggravated possession of drugs in the case numbered B-1903959. The drugs were found in Richardson’s bedroom when his probation officer Kelly Winter conducted a search of his home. Winter also filed community-control violations in the cases numbered B1803045 and B-1805949. Ultimately, the new drug charges against Richardson were dismissed after the trial court granted his motion to suppress the drugs, concluding that there was no reasonable suspicion to conduct the search. The state did not appeal that decision.

State of Ohio v. Brandon Montoya 
Case #C210154 
Quote from Judge Bergeron's Opinion:
In the parking lot of an apartment complex in Loveland, defendantappellant Brandon Montoya coaxed a five-year old child to come watch as he sexually gratified himself. After being charged with child enticement, Mr. Montoya now contends that the trial court erred in allowing the state to amend its complaint to include the specific subsection of the child enticement statute. Based on the language of the complaint at issue, we find the amendment proper and affirm the trial court’s judgment.
I.
The state charged Mr. Montoya with two counts of public indecency under R.C. 2907.09 and one count of child enticement under Ohio’s child enticement statute, R.C. 2905.05. In its complaint, the state failed to list a subsection for the child enticement charge. That proved problematic because the Ohio Supreme Court declared R.C. 2905.05(A) unconstitutional and the complaint tracked the language in R.C. 2905.05(A). State v. Romage, 138 Ohio St.3d 390, 2014-Ohio-783, 7 N.E.3d 1156, ¶ 18 (“Ohio’s child-enticement statute, R.C. 2905.05(A), is unconstitutionally overbroad because it sweeps within its prohibitions a significant amount of constitutionally protected activity.”). But beyond reciting the statutory language, the complaint described the conduct Mr. Montoya allegedly engaged in: “Brandon W. Montoya called a 5-year-old female over to the driver’s side door of his 2016 Nissan Maxima by telling [the] victim he had something to show her. He then exposed himself to the child while masturbating.” 

Brian Marimon v. Amanda Marimon 
Case #C210137
Quote from Judge Winkler's Opinion:
Plaintiff-appellant Brian Marimon (“Father”) appeals a decision of the trial court designating defendant-appellee Amanda Marimon (“Mother”) as the residential parent for purposes of their children’s schooling in the parties’ sharedparenting plan. Because we find no abuse of discretion with regard to the trial court’s decision, we affirm.
Background Mother and Father entered into a shared-parenting plan in 2014 with respect to their three children, born in 2008, 2010, and 2012. At that time, both Father and Mother were living in the Northwest Local School District. Under the plan, the parties agreed that Father would be designated as the residential parent for school purposes, and that the children would attend Monfort Heights Elementary through the fifth grade.
In August 2018, Mother moved to Monroe, Ohio, in the Lakota Local School District. The following year, in September 2019, Father filed a motion to terminate shared parenting, and a motion for change of parental rights and responsibilities. In response, Mother filed a motion to modify the terms of the shared-parenting plan to designate her as the residential parent for school purposes. Father also filed a motion for the trial court to conduct an in camera interview with respect to their eldest child. 

CUC Properties VI, LLC v. Smartlink Ventures, Inc. 
Case #C210003
Quote from Judge Bergeron's Opinion:
Neither snow nor rain nor gloom of night can stop our trusted mail carriers from completing their rounds. Unfortunately, however, Covid-19 prevented them from getting close enough during those deliveries to obtain signatures on certified mail. When plaintiff-appellee CUC Properties attempted to serve defendant-appellant Smartlink Ventures with a summons and complaint via certified mail during the pandemic, the mail carrier failed to obtain a signature from the recipient. Instead, the postal employee jotted down “Covid 19” and “C19” on the return receipt. At issue is whether such a notation constitutes a valid signature to effectuate certified mail service under Civ.R. 4.1. We conclude that it does not on the record before us. Because we find deficiency in service of process, we vacate the trial court’s entry of default judgment for a lack of personal jurisdiction.
I. The relevant facts in this case are straightforward and largely undisputed. Smartlink leased office space from CUC Properties, but vacated the property during the midst of the Covid-19 pandemic. With no rent checks coming in, CUC sued Smartlink, electing to have the clerk of courts serve the summons and complaint via certified mail consistent with Civ.R. 4.1(A)(1)(a). The clerk dutifully sent the summons and complaint to Smartlink’s registered agent and to its principal place of business, but no person at either location ever signed for the certified mail. Rather, the mail carriers handwrote “Covid 19” and “C19” on the respective signature lines, in contravention of the United States Postal Service (“USPS”) guidelines put in place for the exigent circumstances created by the Covid-19 pandemic. 

State of Ohio v. Curtis Scott 
Case #C200403
Quote from Judge Crouse's Opinion:
Defendant-appellant Curtis Scott was indicted for kidnapping with firearm specifications, abduction, felonious assault in violation of R.C. 2903.11(A)(2) with firearm specifications, having a weapon while under a disability, and felonious assault in violation of 2903.11(A)(1) in the case numbered B-1904164. After trial, he was acquitted of the R.C. 2903.11(A)(2) felonious-assault charge, having a weapon while under a disability, and the firearm specifications to the kidnapping count. He was convicted of kidnapping, abduction, and the R.C. 2903.11(A)(1) felonious-assault charge. In an unrelated case, numbered B-1805183, Scott pled guilty to having a weapon while under a disability.
He has appealed, arguing in five assignments of error that (1) the trial court erred in admitting an out-of-court statement of a witness taken by a 911 operator; (2) the trial court erred in failing to instruct the jury on the lesser-included offense of assault; (3) the felonious-assault conviction was supported by insufficient evidence; (4) the kidnapping conviction was against the manifest weight of the evidence; and (5) the trial court erred when it sentenced him for kidnapping rather than abduction.
The appeal numbered C-200403 relates to Scott’s guilty plea and conviction in the case numbered B-1805183 for having a weapon while under a disability. He has not presented any assignments of error or argument regarding that case. Therefore, we dismiss the appeal numbered C-200403. In the appeal numbered C-200385, we overrule all assignments of error and affirm the judgment of the trial court.

James T. Uren, Joseph Khoo-Smith v. William Scoville, Individually and on behalf of his IRA, et al., David Dahoud
Case #C170438
Quote from Judge Winkler's Opinion:
This appeal is brought by defendant-appellant David Dahoud following the entry of summary judgment by the Hamilton County Court of Common Pleas in favor of plaintiffs-appellees James T. Uren and others, collectively “the class,” in the amount of $195,473 representing Dahoud’s “net winnings” in an alleged “Ponzi scheme.” The trial court determined on cross-motions for summary judgment that the class was entitled to “claw back” Dahoud’s alleged gain arising out of the scheme. Because the class established entitlement to summary judgment and Dahoud did not, we affirm.
Background Facts and Procedure
This class-action lawsuit was filed in November 2014. According to the amended complaint, nondefendants Glen Galemmo and his affiliated entities, which we refer to collectively as “Galemmo,” perpetuated a criminal fraud by operating a Ponzi scheme. Some persons and entities who invested money in that scheme from January 1, 2002, to July 26, 2013, suffered a “net loss,” meaning “the funds invested exceeded the total of all funds received in the form of purported income or return of principal.”
The class of “net losers” sought to claw back money from several named defendants, including Dahoud, on the theory that certain transfers they received from Galemmo, a “debtor” under Ohio’s Uniform Fraudulent Transfer Act, R.C. Chapter 1336, were in violation of R.C. 1336.04(A)(1) and (2), resulting in “unjust enrichment.”