Friday First District Roundup 11-19-21


Compiler's Note: After 6 amazing years with the Law Library, I am leaving to pursue other opportunities. Working here and compiling this weekly roundup has been an absolute joy and I know my successor will find these cases just as interesting, fascinating and bewildering as I have. Until then, the First District Roundup will take a temporary hiatus. Thank you for going on this adventure with me.

--Vanessa


In re: A.W. 
Case # C210420
Quote from Judge Myers' Opinion:
Father appeals the Hamilton County Juvenile Court’s judgment granting permanent custody of his child to the Hamilton County Department of Job and Family Services (“HCJFS”). The child’s guardian ad litem (“GAL”) and HCJFS ask this court to affirm the juvenile court’s judgment.
In April 2018, the juvenile court granted interim custody of tenmonth-old A.W. to HCJFS after his mother was admitted to the hospital for mentalhealth and substance-abuse issues. HCJFS filed a complaint for temporary custody, naming father only by his first name, Tracy.
In May 2018, HCJFS amended its complaint to name father by his full name, and another man, M.D., as alleged fathers of A.W. In June 2018, A.W. was adjudicated abused, neglected, and dependent, and mother agreed to his placement in the temporary custody of HCJFS.
In December 2018, the magistrate conducted a review hearing, noting that father, who was in prison in Illinois, had contacted HCJFS to indicate his support of mother’s reunification with A.W.
In February 2020, HCJFS moved for permanent custody under R.C. 2151.413, naming three men, including father, M.D., and a third man as A.W.’s alleged fathers. 

In re: C.E. 
Case #C210407 
Quote from Judge Myers' Opinion:
Mother appeals the Hamilton County Juvenile Court’s judgment granting permanent custody of her child to the Hamilton County Department of Job and Family Services (“HCJFS”). The child’s guardian ad litem (“GAL”) and HCJFS ask this court to affirm the juvenile court’s judgment.
I. Background and Procedural History
HCJFS became involved with mother’s children in 2013, but mother had previous involvement with child protective services in two different states. In May 2000, the Illinois Department of Children and Family Services became involved with mother after her three-week-old child died as a result of cosleeping with mother. The death was ruled an accident, and the case was closed after mother refused services offered to her by the agency.
In 2008, an Iowa court terminated mother’s parental rights to three of her children due to mother’s history of domestic violence, substance abuse, mentalhealth issues and her resistance to services. In 2009, mother gave birth to I.E.-J., and in 2010, the Iowa Department of Children Services temporarily removed the child from mother’s care because of drugs found in the home. I.E.-J. was returned to mother with orders of protective supervision. The case was closed, and mother and I.E.-J. moved to Ohio.

State of Ohio v. Nicole Wildeboer 
Case #C210159 
Quote from Judge Bock's Opinion:
Defendant-appellant Nicole Wildeboer appeals her convictions for operating a motor vehicle while under the influence of alcohol (“OVI”) under R.C. 4511.19(A)(1)(a) and operating a vehicle without reasonable control under R.C. 4511.202. Wildeboer asserts that there was insufficient evidence to show that she operated the motor vehicle and that the judgments were against the manifest weight of the evidence. For the following reasons, we affirm the trial court’s judgments.
I. Facts and Procedure
On Thanksgiving night in 2019, Wildeboer picked up Patrick Stone and drove them to the first of several bars that the pair visited that night. The pair’s last stop was at Village Tavern in Montgomery. After the pair left Village Tavern, they were involved in a car crash that ended with Wildeboer’s car flipped onto its side. Police arrested Wildeboer. The court held a bench trial in December 2020.
A. Richard Ingle’s Testimony
Richard L. Ingle, Jr., was at an ATM across the street from a Cadillac dealership when he “heard tires squealing and the crunch of a crash.” He turned around and saw a white vehicle flipped onto its driver’s side in the dealership’s parking lot. Ingle called 911, got into his vehicle, and drove across the street to the crash. Police responded minutes later.

In re: A.J. 
Case #C210111
Quote from Judge Zayas' Opinion:
A.J. appeals the judgment of the Hamilton County Juvenile Court denying her motion to seal or expunge her juvenile record. For the following reasons, we affirm the judgment of the trial court.
Factual Background
On September 25, 2019, a complaint was filed alleging A.J. was delinquent for committing domestic violence against her mother, a misdemeanor of the first degree if committed by an adult. The matter was dismissed in December 2019 for want of prosecution because her mother did not wish to proceed.
On June 11, 2020, A.J. filed a motion to seal and expunge the record, contending that the record was immediately eligible for sealing upon dismissal. In the alternative, A.J. argued that the court could exercise its extrastatutory authority to seal the record because the statute is ambiguous with respect to dismissed charges and juveniles should have a greater ability to seal records than adults

State of Ohio v. April Lee 
Case #C210001
Quote from Judge Bock's Opinion:
Defendant-appellant April Lee appeals her conviction for discharging a firearm at or into a habitation, arguing that the trial court failed to ensure that she had entered her plea knowingly, voluntarily, and intelligently when it failed to substantially comply with the plea colloquy requirements under Crim.R. 11(C)(2)(a). For the following reasons, we reverse the trial court’s judgment.
I. Facts and Procedure
Lee was indicted on one count of discharging a firearm at or into a habitation and one count of felonious assault. Lee withdrew her not-guilty plea and entered a guilty plea on the felonious-assault charge; the state dismissed the discharging-a-firearm charge. The plea entry stated that Lee faced a minimum of two years to a maximum of eight years in prison.
In the Crim.R. 11 plea colloquy, the trial court stated, “[Y]ou understand that it’s a felony of the second degree, and it carries 2 to 8 years in prison.” The trial court discussed the other terms of Lee’s sentence and the consequences of pleading guilty.
The trial court accepted Lee’s guilty plea on the felonious-assault charge and again stated that it could sentence Lee “anywhere from two to eight years or put [Lee] on probation.”
The trial court’s judgment entry sentenced Lee to a minimum of seven years and a maximum of ten years in the Ohio Department of Corrections and ordered her to pay restitution

State of Ohio v. James Fisher  
Case #C200465
Quote from Judge Bergeron's Opinion:
After defendant-appellant James Fisher sent a flurry of threating messages to Star Higgins, his ex-girlfriend, police arrested him on her street with a firearm concealed in his vehicle. The trial court convicted Mr. Fisher of menacing by stalking, telecommunications harassment, aggravated menacing, and carrying a concealed weapon. Now Mr. Fisher appeals, raising an array of constitutional issues, challenging the weight and sufficiency of the evidence, and protesting the forfeiture of his firearm. We sustain Mr. Fisher’s challenge to the forfeiture of his firearm, but otherwise affirm the trial court’s judgment.
I.
Mr. Fisher and Mrs. Higgins’s relationship deteriorated, leading to their separation shortly after the birth of their son approximately nine years ago. Since that separation, Mr. Fisher vanished from his son’s life. Although he contacted Mrs. Higgins every couple of years to inquire about the child, he made no effort to establish a relationship with his son.
Desiring to chart a new course, in October 2020, he reached out to Mrs. Higgins, asking about his son and expressing a desire to become involved in his life. But when Mr. Fisher’s communications strayed to other topics, Mrs. Higgins drew a line in the sand, forbidding him from contacting her, except about their son. In response, Mr. Fisher lashed out, chastising Mrs. Higgins and criticizing her marriage.
Two days later, with Mrs. Higgins staying silent, Mr. Fisher erupted. From October 25 to October 27, Mr. Fisher bombarded Mrs. Higgins with a tirade of threatening text messages and phone calls. The communications deplored Mrs. Higgins related to the custody dispute over their son. In this volley of texts, among other things, Mr. Fisher threatened to cut a tattoo off her husband’s arm that was dedicated to Mr. Fisher’s son, he sent a picture of him pointing a gun at the camera, and he threatened to kill Mrs. Higgins and her husband. In addition, he threatened to kill Judge Fanon Rucker, a former Hamilton County Municipal Court judge, because Mr. Fisher mistakenly believed he was involved in the custody dispute. In all, Mr. Fisher sent seventy pages’ worth of text messages and made at least four calls to Mrs. Higgins from October 23 to 27. During this period, Mrs. Higgins also discovered a piece of paper left on the windshield of her car that ostensibly ordered Mrs. Higgins’s husband to cover up his tattoo. 

Jerry Wray, Director Ohio Department of Transportation v. Albi Holdings, P.L.L., Business Information Solutions, Inc., Dusty Rhodes, Hamilton County Auditor, Robert A. Goehring, Hamilton County Treasurer 
Case #C200381
Quote from Judge Crouse's Opinion:
Defendant-appellant Albi Holdings, P.L.L., owns property in Hamilton County on which defendant-appellant Business Information Solutions (collectively referred to as “BiS”) operates a commercial records storage facility. Plaintiff-appellee Ohio Department of Transportation (“ODOT”) instituted appropriation proceedings to acquire the property, but later abandoned the appropriation. BiS sought reimbursement from ODOT for employee-retention bonuses it paid after the appropriation was abandoned.
The trial court held that the employee-retention bonuses were not a recoverable expense. BiS has appealed, arguing in two assignments of error that the trial court erred by failing to properly interpret and apply R.C. 163.21 and 163.62. For the reasons discussed below, we overrule both assignments of error and affirm the judgment of the trial court. 

State of Ohio v. Tersail Chapman 
Case #C210210
Quote from Judge Bergeron's Opinion:
Defendant-appellant Tersail Chapman pled guilty to various drug crimes consistent with a plea agreement that recommended a 36 month aggregate sentence. At nearly the midpoint of his sentence, Mr. Chapman filed a motion for judicial release, which the trial court denied. In this delayed appeal, Mr. Chapman does not contest either the voluntariness of his pleas or the validity of his sentence, but maintains that the trial court abused its discretion by accepting a plea agreement that denied his eligibility for judicial release. We disagree, concluding that his theory constitutes an improper attempt to obtain backdoor review of a nonappealable order denying judicial release. We accordingly affirm the trial court’s judgment.
In April 2018, Cincinnati police executed a search warrant on Mr. Chapman’s residence. The search uncovered drug evidence, which led to his indictment for six counts of drug crimes.
As the case unfolded, Mr. Chapman eventually entered a plea agreement with the state, agreeing to plead guilty to two counts of drug trafficking in exchange for the dismissal of the remaining charges. The plea agreement included a 36 month recommended aggregate sentence. And Mr. Chapman acknowledged that he was not eligible for judicial release, intensive prison programs, transitional control, or any other early release in the plea agreement. The trial court accepted the plea agreement, and it sentenced Mr. Chapman in accordance with the sentencing recommendation. 

In re: J.H. 
Case #C210441
Quote from Judge Crouse's Opinion:
Mother has appealed the juvenile court’s entry granting permanent custody of her child, J.H., to the Hamilton County Department of Job and Family Services (“HCJFS”). In two assignments of error, mother argues that the juvenile court abused its discretion by denying her motion for a continuance, and that HCJFS failed to establish by clear and convincing evidence that it should be given permanent custody of J.H. For the reasons that follow, we overrule both assignments of error and affirm the judgment of the juvenile court.
Factual and Procedural Background
J.H. was born on September 26, 2020. After hospital staff became aware of mother’s mental-health issues, she was placed on a 72-hour hold. Mother told staff that she did not have any food or supplies for J.H. and that she was going to leave the hospital against medical advice to shoot herself. That same day, by emergency order of the juvenile court, J.H. was placed in HCJFS custody. Two days later, on September 28, 2020, the juvenile court granted temporary custody to HCJFS.
On December 17, 2020, HCJFS filed a complaint for permanent custody. The juvenile court agreed, and adjudicated J.H. dependent on February 24, 2021, before granting permanent custody to HCJFS on April 5, 2021. 

State of Ohio v. Clayton David 
Case #C210227 
Quote from Judge Winkler's Opinion:
Clayton David appeals his conviction, after a bench trial, for domestic violence, in violation of R.C. 2919.25(A). David contends his conviction must be reversed because the testimony of the prosecuting witness was not credible and the trial court improperly admitted evidence of uncharged “other acts” in contravention of Evid.R. 404(B). For the following reasons, we affirm.
Background Facts and Procedure
David was charged with domestic violence against Destiny Cook relating to an incident that occurred on the evening of February 20, 2021, at Cook’s house. At that time, David and Cook had been in a long-term romantic relationship and shared one child, A.D., a four-year-old daughter.
Cook testified that the incident began shortly after she returned to her house with A.D. They entered through the front door and expected to find an empty house because she and David had broken up and he was not supposed to be there. When she saw David on the stairs, she accused him of mistreating another one of her children. David “darted” down the steps and “attacked” A.D. Cook then dove atop A.D. to protect her. David began lashing Cook and A.D. with a leather belt. Cook tried to escape out the front door with A.D. but tripped. David then resumed the lashing and struck A.D.’s elbow, causing a welt where the metal buckle made contact with her body. When the attack stopped, Cook pretended the attack had not happened to avoid further harm.

Andrew White, Vena Jones-Cox, Cincinnatus Property Management, LTD., Tashaz, LLC, Proffitt Real Estate Services, Inc. v. City of Cincinnati, Ohio, Sonya Walker, in her official capacity as Alarm Administrator of the City of Cincinnati, Ohio, and in her personal capacity 
Case #C210133
Quote from Judge Winkler's Opinion:
Plaintiffs-appellants Andrew White, Vena Jones-Cox, Cincinnati Property Management, Ltd., Tashaz, LLC, and Proffitt Real Estate Services, Inc., filed a complaint in the Hamilton County Court of Common Pleas against defendantsappellees the city of Cincinnati and Sonya Walker, in her official capacity as Alarm Administrator for the city and in her personal capacity, (collectively “the city”) challenging the constitutionality of the city’s ordinances regulating alarm systems. The trial court denied appellants’ motion for partial summary judgment and granted summary judgment in favor of the city. Appellants present three assignments of error for review. We find merit in their assignments of error, and we reverse the trial court’s judgment.
I. Facts and Procedure
The record shows that in 1986, the city enacted Ordinance 448-1986 to regulate security alarm systems because of the high cost of responding to false alarms. That ordinance was codified in Cincinnati Municipal Code Chapter 807 (“Chapter 807”), which sets forth registration fees for “alarm businesses” and “alarm users.”
Cincinnati Municipal Code 807-1-A states that “alarm business” means “the business * * * of selling, installing, leasing, maintaining, servicing, repairing, altering, replacing, moving, or monitoring any alarm system or causing to be sold, installed, leased, maintained, serviced, repaired, replaced, moved, or monitored any alarm system in or on any building, structure or facility.” Cincinnati Municipal Code 807-1-A3 defines an “alarm user” as “any person, firm, partnership, association, corporation, company, or organization of any kind in control of premises wherein an alarm system is maintained.” 

State of Ohio v. Tyeisha Champion 
Case #C200462 
Quote from Judge Zayas' Opinion:
Tyeisha Champion appeals her theft conviction, after a bench trial, for taking property from Walmart. Raising one assignment of error, Champion contends that her conviction was based on insufficient evidence and against the manifest of the evidence. For the following reasons, we affirm the judgment of the trial court
Factual Background
On April 24, 2020, a complaint and affidavit were filed alleging Tyeisha Champion knowingly obtained control over property without Walmart’s consent. Specifically, Champion and her cousin Holly Champion entered the business and selected several items and proceeded to the self-checkout register. Both women failed to scan several items, ticket-switched price tags, and left with merchandise valued at $278.95. Champion pled not guilty and proceeded to a bench trial.
At trial, the state’s sole witness, Gracie Stamper, testified that she was working at the Walmart on Red Bank Road on April 24, 2020. Stamper was in her office watching the cameras recording the self-checkout lanes. Stamper observed Champion and her cousin in the self-scan line with a full shopping cart. Both began scanning items and had multiple items in their hands. Each scanned one item, and then placed several items in the bag. Champion and her cousin did not scan five or six items, including clothing, a pair of sandals, and candles. Stamper testified that she had a handheld device in her office that allowed her to see which items were scanned and the cost of each item as the items were being scanned.

State of Ohio v. Stephen Escobar 
Case #C200424
Quote from Judge Zayas' Opinion:
Stephen Escobar appeals his two theft convictions after two bench trials. Raising four assignments of error, Escobar contends that he was denied the effective assistance of counsel because counsel failed to inform him of his right to a jury trial at a time when he could timely request a jury trial, denied his right to counsel in his second trial, and denied his right to fair trials due to judicial bias, and that his convictions were against the manifest weight of the evidence. For the following reasons, we affirm the judgments of the trial court.
Pretrial Proceedings
On January 27, 2020, Stephen Escobar was charged with theft by deception for depriving Islam Kelishov of $435 after offering to sell him an iPhone and taking the cash and the iPhone. While that case was pending, a second theft charge was filed March 8, 2020, alleging that Escobar offered to sell an iPhone to Vianey Santiago for $400 and took the money and the iPhone. Escobar pled not guilty to both charges.
Escobar filed a discovery request and a request to preserve all recordings. The trial was continued twice at the request of the state because the witnesses did not appear and once at the request of the defense because the state had not provided discovery. After discovery was provided, Escobar filed a motion to compel a complete photo lineup. 

State of Ohio v. Van Armstead 
Case #C200417
Quote from Judge Crouse's Opinion:
Following a jury trial, defendant-appellant Van Armstead was convicted of voyeurism in violation of R.C. 2907.08(B). He has appealed, arguing in three assignments of error that (1) the trial court erred in admitting other-acts evidence in violation of Evid.R. 402, 403, and 404; (2) his conviction was based upon insufficient evidence and against the manifest weight of the evidence; and (3) the trial court erred by ordering the forfeiture of his cell phone.
For the following reasons, we overrule all three assignments of error and affirm the judgment of the trial court.
Factual Background
Michael Combs testified that on September 4, 2019, he was shopping at Lowe’s Home Improvement Store in Springdale, Ohio, when he had to use the restroom. He entered one of the stalls in the men’s restroom. He removed his pants and underwear and sat down on the toilet. After a couple of minutes, he glanced down and saw a cell phone underneath the partition between bathroom stalls. He testified that the cell phone was “coming in and out” under the partition. He pulled up his pants, exited from the stall, washed his hands, and exited from the restroom. He notified a store employee who called the police.