Friday First District Roundup 10-29-21

In re: R.B.  
Case # C210119
Quote from Judge Winkler's Opinion:
R.B. appeals his adjudication of delinquency for engaging in conduct that would constitute the offense of obstructing official business, a second-degree misdemeanor if committed by an adult. Because the state failed to demonstrate that R.B. actually hampered or impeded the performance of a public official’s duty, an essential element of the offense, we reverse.
Background Facts and Procedure
In the early evening of July 27, 2020, Cincinnati Police Officer Jerome Herring and another officer responded to a location on Crest Hill Avenue upon a report that people were in a house that was supposed to be vacant. Many of the facts concerning the ensuing investigation were captured by Officer Herring’s body-worn camera.
These facts show Officer Herring arrived in his police cruiser, but had not activated his lights or sirens, and he parked a distance from the house. The two-story house appeared to be vandalized. Officer Herring first approached the detached garage and found no occupants. He then walked toward the back porch of the house where a back door was located. That back door appeared to be open about an inch but then it shut. Upon seeing the door close, Officer Herring immediately drew his weapon and yelled, “hands, let me see your * * * hands” while he kicked the door open into the back room of the house. Although the officer did not see anyone in that room, he heard someone running inside the house and sent his partner to the front of the house to secure that exit. Seconds later, Officer Herring entered while announcing that he was a police officer and ordered, “if you are in the house announce yourself or you are going to get bit by the dog.” One second later, R.B. replied to the officer and then appeared before him with his hands in the air.

State of Ohio v. Ledon Spurling 
Case #C210002
Quote from Judge Zayas' Opinion:
Defendant-appellant LeDon Spurling appeals the judgment of the Hamilton County Common Pleas Court dismissing his “Motion to Vacate Void Judgment for Lack of Jurisdiction and Notice of the Charge Pursuant to Crim.R. 32.1.” We affirm the court’s judgment.
Procedural Posture
In 2005, Spurling was charged in a two-count indictment with trafficking in and possession of 1.35 grams of crack cocaine. Count one charged third-degree-felony trafficking. Count two charged fourth-degree-felony possession. Under a plea agreement, the count-one third-degree-felony trafficking charge was amended to charge third-degree-felony possession, and Spurling pled guilty to count one as amended, in exchange for dismissal of the count-two fourth-degree-felony possession charge and an agreed two-year prison term. The trial court accepted his guilty plea in conformity with Crim.R. 11, found him guilty of third-degree-felony possession as charged in amended count one, and set a date for sentencing. Before sentencing, Spurling twice moved under Crim.R. 32.1 to withdraw his guilty plea. The trial court denied the motions and imposed the agreed two-year prison term.

State of Ohio v. Sean Zeigler 
Case #C200212 
Quote from Judge Bock's Opinion:
Petitioner-appellant Sean Zeigler appeals the Hamilton County Common Pleas Court’s judgment denying his petition under R.C. 2953.21 et seq. for postconviction relief. Upon our determination that the trial court had no jurisdiction to entertain the petition, we affirm the judgment as modified to dismiss the petition.
In 2016, Zeigler was convicted of aggravated burglary, rape, felonious assault, and tampering with evidence in connection with sexually assaulting J.R. We affirmed those convictions in the direct appeal. State v. Zeigler, 2017-Ohio-7673, 97 N.E.3d 994, delayed appeal denied, 152 Ohio St.3d 1461, 2018-Ohio-1795, 97 N.E.3d 499.
In December 2018, Zeigler filed with the trial court a postconviction petition, along with a separate motion seeking leave to file the petition out of time. In this appeal, Zeigler presents two assignments of error that fairly may be read together to challenge the denial of the petition without an evidentiary hearing. We find no merit to that challenge.

Justin Dubose v. Charmaine McGuffey, Hamilton County Sheriff 
Case #C210489
Quote from Judge Crouse's Opinion:
Petitioner Justin Dubose is currently being detained in the Hamilton County Justice Center because he contends he is unable to post the $1.5 million bail that has been set in his case. Dubose and codefendant Jamie Shelton were charged with the murder of Shawn Green. The murder is alleged to have occurred on July 18, 2020, during a robbery. Dubose has been indicted for two counts of murder, one count of aggravated robbery, and one count of aggravated burglary in the case numbered B-2005815B. He has filed a petition for a writ of habeas corpus challenging the amount of his pretrial bail as excessive. The court, upon consideration thereof, finds that the petition is well taken and is granted.
The Bail Hearings Below
Complaints were filed and warrants were issued against Dubose on October 2, 2020, for murder and aggravated robbery. He was arrested in Las Vegas, Nevada. He waived extradition and was returned to Hamilton County on November 5, 2020, and appeared before the Hamilton County Municipal Court for a bail hearing. At the hearing, the state requested that the court impose a $1.5 million secured bail because a different judge had already set such a bail for his codefendant, Shelton. In support of the high bail, the state claimed that Dubose and Shelton shot the victim in the head after they entered the garage of a home in order to rob the homeowner of his marijuana. They subsequently fled the scene and Dubose was arrested in Las Vegas. 

State of Ohio v. Russell Holmes 
Case #C210196
Quote from Judge Myers' Opinion:
Defendant-appellant Russell Holmes pled guilty to breaking and entering in the cases numbered B-2002940 and B-2003296 and to possession of a fentanyl-related compound in the case numbered B-2003982. All offenses were felonies of the fifth degree. The trial court imposed a sentence of sixth months in prison for each charge, and ordered that the sentences be served consecutively, resulting in an aggregate sentence of 18 months of imprisonment.
Holmes now appeals, arguing in a single assignment of error that the trial court erred in imposing consecutive sentences without making the findings required by R.C. 2929.14(C)(4) during the sentencing hearing. The state concedes that the trial court committed this error.
Pursuant to R.C. 2953.08(G)(2)(a), we may modify or vacate a defendant’s sentence only if we clearly and convincingly find that the record does not support the trial court’s findings under relevant statutes (specifically division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code) or that the sentence is contrary to law. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22-23; State v. White, 2013-Ohio-4225, 997 N.E.2d 629, ¶ 5 (1st Dist.). 

Norma Williams v. City of Cincinnati 
Case #C210146 
Quote from Judge Bergeron's Opinion:
This case arises from a trip and fall on the sidewalk in downtown Cincinnati. It turns on whether defendant-appellant city of Cincinnati (“the city”) is immunized from tort liability for injuries caused by its negligent maintenance of the sidewalk. Consistent with the statute at hand and our precedent, we hold that the city is shielded from tort liability for its negligent maintenance of the sidewalk under basic principles of governmental immunity, and we accordingly reverse the trial court’s judgment to the contrary.
Plaintiff-appellee Norma Williams claims that the city negligently removed a traffic signpost from a corner of downtown Cincinnati, leaving a jagged piece of the post protruding from the sidewalk. As she walked through downtown on a crisp fall day, she tumbled over this broken-off signpost, fracturing her shoulder, bruising her face, and suffering blood loss. After sustaining these injuries, she sued the city and alleged in her complaint that the incident occurred while “walking on the city sidewalk on Broadway Ave.”
Eventually, the city moved for judgment on the pleadings, insisting that governmental immunity from injuries caused by negligent maintenance of sidewalks shielded it from any liability. The trial court issued an order denying the motion, without providing any analysis, and the city immediately appealed. We have appellate jurisdiction pursuant to R.C. 2744.02(C), which reads “[a]n order that denies a political subdivision or an employee of a political subdivision the benefit of an alleged immunity from liability as provided in this chapter or any other provision of the law is a final order.” 

Gail Ann Holimon, Individually and as Administratrix of the Estate of Corey L. Holimon, deceased v. Sonika Sharma, Cincinnati Metropolitan Housing Authority 
Case #C210203 
Quote from Judge Myers' Opinion:
Defendant-appellant the Cincinnati Metropolitan Housing Authority (“CMHA”) appeals the trial court’s judgment denying its motion to dismiss the claims brought against it in a complaint filed by plaintiff-appellee Gail Ann Holimon, as the administratrix of the estate of Corey L. Holimon.
Because CMHA was entitled to a grant of immunity on Holimon’s claims under R.C. Chapter 2744, we hold that the trial court erred in denying the motion to dismiss, and we reverse its judgment. Allegations and Procedural Background
Holimon participated in CMHA’s Housing Choice Voucher program. Through this program, Holimon, along with her sons Corey and Kevin, moved into a residence owned by Sonika Sharma. CMHA facilitated the lease and paid a majority of Holimon’s rent. Holimon was responsible for a smaller portion of the rent as well as payment for utilities.
According to her complaint, after moving into Sharma’s property in December of 2017, Holimon observed black mold around a drain in the bathroom shower. Holimon alleges that she raised several complaints about the mold, but the problem was not remedied. Corey, who had preexisting pulmonary health problems, developed more severe pulmonary symptoms and was hospitalized for a short period soon after moving into the residence. Corey was hospitalized for a second time in March of 2018 when his symptoms continued to worsen. He was transferred to a long-term care facility, where he passed away in October of 2018. 

State of Ohio v. Christiaan Cook 
Case #C210144
Quote from Judge Crouse's Opinion:
Defendant-appellant Christiaan Cook appeals his convictions for domestic violence and child endangerment. For the reasons set forth below, we affirm the judgments of the trial court in part, but remand the cause for a new sentencing hearing at which the state must choose which allied offense to pursue.
I. Facts and Procedure
On July 12, 2020, defendant-appellant Christiaan Cook was with his two children in a gymnasium parking lot getting ready to play basketball. Prior to entering the facility, Cook discovered that his four-year-old son, S.S., had discarded part of his lunch underneath the car.
At a bench trial, Cincinnati Police Officer Anthony Dawson testified that he was completing an unrelated police report in the parking lot, when he heard someone yelling nearby. Dawson testified that he saw Cook “slap [S.S.] on top of his head. And then * * * grab [S.S.] by the back of the neck and pick him up by the back of his neck and then slam him on the trunk of a car. And then * * * pull the child off of the car again and then str[ike] the child again after that.” Dawson explained that Cook “face planted [S.S.] face first down onto the trunk of the car, forcefully.” It was at this point that Dawson activated his body camera and intervened. 

Mid-Century Insurance Company, as Subrogee of General Western Highland Company v. Nicholas Stites 
Case #C200421 
Quote from Judge Zayas' Opinion:
This case arises from a fire that occurred at an apartment complex on August 22, 2015. Plaintiff-appellant, Mid-Century Insurance Company, as subrogee of General Western Highland Company (“MCI”), brings this appeal to challenge the trial court’s grant of summary judgment in favor of defendant-appellee Nicholas Stites. For the following reasons, we affirm the judgment of the trial court.
Procedural History
On August 7, 2017, MCI brought suit against Stites for negligence. Stites subsequently moved for summary judgment on the claim, attaching his own affidavit to the motion. The trial court granted summary judgment in favor of Stites on October 19, 2018, after MCI failed to file a response. On November 28, 2018, MCI filed a motion to vacate the court’s judgment and requested to file a response in opposition to summary judgment instanter. The trial court granted the motion and allowed leave for MCI to file its response. The response included a deposition of Stites and a “Hamilton County Fire Investigation Unit Incident Report.” Stites then filed a reply in support of his motion for summary judgment, which included an affidavit of Steven Buchner and a “Woodlawn Police Division Criminal Investigations Section Investigative Summary.” 

State of Ohio v. Joseph Kidd
Case #C200356 
Quote from Judge Zayas' Opinion:
Joseph Kidd appeals his convictions following a jury trial for six counts of rape of a child under ten years old. For the following reasons, we affirm the trial court’s judgment in part, reverse the judgment in part, and remand the cause to the trial court.
Procedural and Factual Background
On February 14, 2019, Joseph Kidd was indicted on two counts of rape for engaging in fellatio with A.O., a child under ten years old, two counts of rape for inserting his penis in A.O.’s anus, a child under ten years old, and two counts of rape for engaging in fellatio with A.O., a child under ten years old. All of the offenses occurred between November 21, 2015, and May 11, 2016.
At the time of the offenses, Kidd was living with his girlfriend K.O. in a trailer on Compton Road. They lived with K.O.’s two sons, A.O. and M.O., and their daughter S.O.
In June 2016, A.O. and M.O. lived in a foster home. A child in the foster home was being investigated for possible sexual abuse. At that time, A.O. was interviewed at the Mayerson Center. A.O. stated that a foster child named Poppy had sexually abused his brother M.O. At the interview, A.O. denied that anyone had hurt him or had touched him on his body.