Friday First District Roundup 12-6-19

Each Friday, we highlight decisions of the First District Court of Appeals in the past week. For question about these cases, contact Vanessa Seeger.

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In re: W/H/C Children
Case #C190458

Quote from Judgment Entry:

The Hamilton County Juvenile Court granted permanent custody of six of mother’s children to the Hamilton County Department of Job and Family Services (“HCJFS”). Mother and E.H., the father of four of her children, now appeal. E.H. supports a return of custody of his four children to mother. The children’s guardian ad litem and HCJFS ask this court to affirm the juvenile court’s judgment.

In mother’s two interrelated assignments of error and in E.H.’s sole assignment of error, they argue that the juvenile court’s award of permanent custody was against the manifest weight of the evidence and was not supported by sufficient evidence. Mother specifically asserts that HCJFS improperly required her to leave her home and used the consequences of her leaving to gain permanent custody of her children, and that the court failed to adequately consider evidence related to HCFJS’s mandate that she leave her home.

Jessie H. Fleetwood v. LeJuan Fleetwood
Case # C190025

Quote from Judgment Entry:

In 2014, during the dissolution of their marriage, Lajuan Fleetwood and Jessie Fleetwood both agreed to share parenting of their three children. However, after certain inappropriate and aggressive actions by Mr. Fleetwood, Ms. Fleetwood moved to terminate the shared parenting plan. While awaiting the hearing on this motion, the court, upon Ms. Fleetwood’s request, temporarily suspended Mr. Fleetwood’s parenting time and contact with his three children. On September 13 and 15, 2017, the parties resolved all the parenting issues, submitting to the court two agreed entries, which the court incorporated into its September 22 order. Within these agreed entries, the parties agreed to terminate the shared parenting plan, designate Ms. Fleetwood the sole residential parent and legal custodian of the children, and provide Mr. Fleetwood with a detailed reunification plan that, if followed, would allow him to resume contact and parenting time with the children.

Patricia Asher v. Glenway Real Estate, LLC, Bernens Convalescent Pharmacy, Inc.
Case #C180663

Quote from Judge Myers' Opinion:

Plaintiff-appellant Patricia Asher appeals the trial court’s judgment granting summary judgment to defendants-appellees Glenway Real Estate, LLC, (“Glenway”) and Bernens Convalescent Pharmacy, Inc., (“Bernens”) on Asher’s claims for negligence and negligence per se.

Because the trial court erred in determining that the hazard on which Asher was injured was open and obvious, and because genuine issues of material fact exist as to whether Glenway and Bernens had prior knowledge of the hazard, we reverse the trial court’s grant of summary judgment on Asher’s claim for negligence. But we affirm the trial court’s grant of summary judgment on Asher’s claims for negligence per se, as the statutes relied upon by Asher to establish negligence per se set forth only a general description of a duty and do not establish a definite standard of care, and thus cannot serve as the basis for negligence per se.

ICSO Industries, Inc., ICSO Canada, Inc. v. Great American Insurance Co.
Case # C180636

Quote from Judge Winkler' Opinion:

Plaintiffs-appellants ISCO Industries, Inc., and ISCO Canada, Inc., (collectively “ISCO”) appeal the dismissal of their complaint against their insurer, defendant-appellee Great American Insurance Company (“Great American”), arising from Great American’s refusal to provide coverage with respect to a lawsuit and settlement between ISCO and a third-party Canadian corporation. For the reasons that follow, we affirm the trial court’s dismissal.

Maikel Steele, Administrator of the Estate of O'Bryan Raphael Spikes v. City of Cincinnati, Brian A. Brazile, David Dozier, Joehonny N. Reese, Diondre L. Winstead, Cameo Cincinnati, LLC, Julian Rodgers, JRODG Group, LLC, Kellogg Group, LLC
Case #C180593

Quote from Judge Myers' Opinion:

In this appeal, we are asked to determine whether defendantsappellees the city of Cincinnati and Cincinnati Police Officers Brian Brazile, David Dozier, Joehonny Reese, and Diondre Winstead (“the officers”), are entitled to judgment on the pleadings on plaintiff-appellant Maikel Steele’s claims against them relating to a shooting that took place at a Cincinnati nightclub where the officers were working a security detail as private duty officers outside the nightclub.

Because the trial court appropriately determined that the city was entitled to a grant of immunity because the officers were engaging in a governmental function when working the security detail outside the nightclub, and that the officers had no duty under the facts alleged in the complaint to prevent weapons from being brought into the nightclub, we hold that the trial court did not err in granting the motion for judgment on the pleadings.

Banker's Choice, LLC, Stough Development Corporation v. Zoning Board of Appeals of The City of Cincinnati, The City of Cincinnati
Case #C180578

Quote from Judge Zayas' Opinion:

This is the second appeal by defendants-appellants Zoning Board of Appeals for the city of Cincinnati and the city of Cincinnati (collectively, “the ZBA”). The ZBA now argues that the trial court did not follow this court’s remand instructions set forth in Banker’s Choice, LLC v. Zoning Bd. of Appeals of City of Cincinnati, 2018-Ohio-3030, 106 N.E.3d 1271 (1st Dist.) (“Banker’s Choice I”). For the following reasons, we agree.

State of Ohio v. William Baxter
Case # C180575

Quote from Judge Myers' Opinion:

William Baxter appeals the judgment of the Hamilton County Municipal Court convicting him of domestic violence, in violation of R.C. 2919.25(A). Because his conviction was supported by the weight of the evidence and was based upon sufficient evidence, we affirm the trial court’s judgment.

At the bench trial, Tanisha Turney, the mother of Baxter’s 11-year-old son, testified that she and several of her children were at a Family Dollar store when Baxter entered the store and began to argue with her. During their argument, Baxter shoved Turney into a display table, causing her injury. A store surveillance video of the incident was entered into evidence and confirms the confrontation.

State of Ohio v. Antonio Watts
Case # C180545

Quote from Judge Bergeron's Opinion:

A reunion between two long-time (but now erstwhile) friends, with some early-morning alcohol added to the mix, resulted in an assault charge and conviction for one of them against the other. Defendant-appellant Antonio Watts now appeals, challenging his conviction as against the manifest weight of the evidence. But he lost the credibility battle before the trial judge, and we see no basis as to how the court went astray on the record before us. The defendant also presents a Confrontation Clause argument, but this fails at a threshold level because the state offered no testimonial statement by an unavailable witness at trial. We therefore affirm the trial court’s judgment and overrule the assignments of error.

State of Ohio v. John Long
Case #C180541

Quote from Judge Myers' Opinion:

Defendant-appellant John Long appeals the Hamilton County Common Pleas Court’s entry denying his 2018 application under R.C. 2953.71 et seq. for DNA testing of biological evidence found at the scene of Amerrintha Spikes’s murder and overruling his motions for appointed counsel and an evidentiary hearing on the application. We affirm the court’s judgment.

State of Ohio v. Cameron McGlothin
Case #C180498

Quote from Judge Crouse's Opinion:

Petitioner-appellant Cameron McGlothin appeals the Hamilton County Common Pleas Court’s judgment denying his 2018 petition under R.C. 2953.21 et seq. for postconviction relief. Because the court had no jurisdiction to entertain McGlothin’s late and successive petition, we affirm the judgment as modified to dismiss the petition.

State of Ohio v. Eddie Savage
Case #C180413

Quote from Judge Zayas' Opinion:

Eddie Savage appeals his convictions, after a jury trial, for aggravated robbery, a felony of the first degree, with gun specifications, and robbery, a felony of the second degree. Savage contends that the trial court erred in imposing a sentence that was not supported by the record, the trial court erred by joining unrelated cases for trial, he was deprived of his right to a fair trial due to prosecutorial misconduct, and the trial court erred by not suppressing the evidence obtained in the photographic lineups. Finding his assignments of error without merit, we affirm the trial court’s judgment.

In re: D.C.
Case #C180354

Quote from Judge Crouse's Opinion:

Appellant D.C. was 13 years old at the time he shot another teenager in the stomach, causing serious injuries that required a prolonged hospital stay. D.C. was adjudicated delinquent for committing an act that, had he been an adult, would have constituted felonious assault with an accompanying firearm specification under R.C. 2903.11 and 2941.145. He has appealed, raising three assignments of error: (1) the juvenile court erred by overruling his motion to suppress the eyewitness identification; (2) his adjudication was not supported by sufficient evidence and was against the manifest weight of the evidence; and (3) the juvenile court erred in its disposition of D.C. For the following reasons, the assignments of error are overruled, and the judgment of the juvenile court is affirmed.

Mark Johnson, Individually and as Guardian of David Johnson, an Incompetent, Glenda Johnson, Gary Johnson v.
Anthoney Abdullah, M.D.
Case #C180309

Quote from Judge Bergeron's Opinion:

Evid.R. 601(D) stems from a salutary purpose—preventing “hired gun” professional witnesses who do not actually treat patients from pontificating on how treating doctors should have performed their jobs in medical malpractice cases. But the square peg of this purpose does not always fit in the round hole of the language the rule employs. As a result, since its inception, Ohio courts have sometimes struggled trying to imbue the rule with sensible meaning. This case-by-case analysis has generated some confusion, and we endeavor to clarify today the standard required for an expert to engage in the “active clinical practice” of medicine.

We hold that an accomplished doctor should not have testified at trial because he did not engage in the “active clinical practice” of medicine as the rule commands. As chief operating officer (“COO”) of a hospital system, his job was almost entirely administrative, and while he insisted that everything he did impacted patient care in some fashion, that is a bridge too far for us to cross. By that logic, a nonphysician COO would also be engaged in the active clinical practice of medicine. We decline to equate administrative work far removed from patient care with “active clinical practice,” regardless of how noble the work or how qualified the doctor.

Because the rule’s plain language should have prevented this doctor from testifying, we reverse the judgment entered by the trial court and remand for a new trial.

State of Ohio v. Terry L. Jones
Case #C180091

Quote from Jude Crouse's Opinion:

In this murder case, the victim was brutally stabbed in his neck. The knife hit an artery, causing him to bleed to death. Defendant-appellant Terry Jones’s girlfriend, Alisha Hawkins, testified on his behalf at trial and claimed that she was the one who stabbed the victim, not Jones. Nevertheless, the jury found Jones guilty, and he was sentenced to 15 years to life in prison. The key witness against Jones was Hawkins’s 13-year-old son, T.D. T.D. testified at trial that it was Jones, and not his mother, who stabbed the victim.

The main issues in this appeal revolve around Jones’s argument that the state withheld material impeachment evidence, including promises allegedly made to T.D. in order to get him to testify against Jones. In four assignments of error Jones argues that: (1) his right to due process and a fair trial were violated when the state failed to disclose and investigate material impeachment evidence, when the state engaged in misconduct, and when the trial court failed to declare a mistrial when it learned the state failed to disclose and investigate material impeachment evidence; (2) he was denied the effective assistance of trial counsel when counsel learned of impeachment evidence, but failed to request a continuance to investigate; (3) his murder conviction under R.C. 2903.02(B) was against the manifest weight of the evidence because the evidence presented at trial overwhelmingly demonstrated that Hawkins killed the victim; and (4) the trial court committed plain error in failing to sua sponte instruct the jury on voluntary manslaughter under R.C. 2903.03.

In re: D.C.H.
Case #C180514

Quote from Judge Bergeron's Opinion:

When a case arrives on a juvenile court judge’s desk on objections to a magistrate’s decision, the juvenile court may entertain new evidence to evaluate the propriety of the magistrate’s decision. But when a juvenile court does so, that evidence must satisfy established evidentiary requirements, and for witnesses, that means they must offer sworn testimony. The appellant here challenges the juvenile court’s order overturning the magistrate’s decision for its reliance on unsworn statements during a colloquy with the court at which no opportunity for crossexamination was provided. But jurisdictional obstacles ultimately overshadow that issue and deprive us of jurisdiction over this appeal. We accordingly dismiss this appeal.

State of Ohio v. Laquisha King
Case #C180407

Quote from Judgement Entry:

Defendant-appellant Laquisha King appeals the judgments of the Hamilton County Municipal Court, convicting her at a bench trial for violations of R.C. 2917.11(A), disorderly conduct, and R.C. 2921.33, resisting arrest. The convictions resulted from a 2017 verbal altercation between Ms. King and Officer Carlos Sherman in the entryway of a Kroger store. On appeal, Ms. King raises two assignments of error, challenging both the weight and sufficiency of the evidence underlying each of her convictions.

Reviewing challenges to the sufficiency of the evidence requires that we examine the evidence in the light most favorable to the state and determine whether a rational trier of fact could have found Ms. King guilty of all the essential elements of disorderly conduct and resisting arrest beyond a reasonable doubt. See State v. Adams, 1st Dist. Hamilton Nos. C-000388, C-000389 and C-000390, 2001 WL 958899, *3 (Aug. 24, 2001), citing State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) paragraph two of the syllabus. A challenge to the weight of the evidence requires review of the entire record, weighing of the evidence and all reasonable inferences, and considering the credibility of the witnesses to determine whether in resolving conflicts in the evidence the trier of fact lost its way, resulting in a manifest miscarriage of justice. Id.; State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).

State of Ohio v. Terry Clark
Case #C180370

Quote from Judgement Entry:

Defendant-appellant Terry Clark appeals the Hamilton County Common Pleas Court’s judgment overruling his postconviction “Motion to Vacate Judgment and Conviction.” Because the court had no jurisdiction to grant the relief sought in that motion, we affirm the judgment as modified to dismiss the motion.