Friday First District Roundup 3-27-20

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: J/B Children
Case #C190651

Quote from Judge Crouse's Opinion:

Mother appeals from a judgment of the Hamilton County Juvenile Court that terminated her parental rights and placed T.J. in the permanent custody of the Hamilton County Department of Job and Family Services (“HCJFS”). For the reasons set forth below, we affirm the juvenile court’s judgment.

Mother is the natural parent of T.J., born September 16, 2002. HCJFS opened a case against mother in May 2016 after receiving reports from T.J.’s school personnel that expressed concerns for T.J.’s well-being. T.J. reported to the school that mother had abused her in the past, and due to the abuse, T.J. was afraid to go home. T.J. also reported to the school that the thought of going home caused suicidal ideations. Mother initially agreed to a safety plan which placed T.J. in a group home. However, mother revoked the safety plan after four days. When mother revoked the plan, T.J. repeated her fear of going home and HCJFS obtained an emergency order from the juvenile court

In re: B/K Children
Case # C190681

Quote from Judge Winkler's Opinion:

Mother appeals the juvenile court’s judgment granting the Hamilton County Department of Job and Family Services’s (“HCJFS”) motion for permanent custody of her two young children, P.B. and L.K. This case is on appeal for the second time. We previously reversed the juvenile court’s April 2019 judgment adopting the magistrate’s decision granting the motion for permanent custody. In re: B/K Children, 1st Dist. Hamilton No. C-190269, 2019-Ohio-5503. We set it aside because the record did not reflect that the juvenile court had considered all the statutory best-interest factors when resolving HCJFS’s motion. On remand, the juvenile court issued a new decision, journalized on November 15, 2019, also adopting the magistrate’s decision granting permanent custody to HCJFS, but reflecting that the court had considered all the statutory best-interest factors in arriving at that determination.

Mother now appeals from the November 2019 judgment, raising two assignments of error. First, she argues the juvenile court failed to specifically overrule her objections to the magistrate’s decision, as required by Juv.R. 40. Second, she contends the decision to grant permanent custody to the agency and terminate her parental rights was not supported by clear and convincing evidence and was against the weight of the evidence.

We conclude that the juvenile court’s judgment complies with the requirements of Juv.R. 40. Further, we conclude that the evidence supports the juvenile court’s decision to grant the agency’s motion for permanent custody. Notwithstanding progress made by mother in remedying some of the conditions that led to the children’s removal, the evidence shows she repeatedly failed to remedy the safety risk posed by domestic violence and will not be able to protect the children within a reasonable time or ever. The evidence also shows that a grant of permanent custody best serves the needs of the children. Because the errors assigned are not demonstrated in the record, we affirm.

City of Cincinnati, State of Ohio Ex Rel. Paula Boggs Muething, City Solicitor v. Arthur Eugene Hughes, Linda Sue Ball, LB LLC, Inc. a.k.a. LB, LLC d.b.a. Knowlton's Tavern, Spike Properties, LLC
Case #C190491

Quote from Judgment Entry:

Knowlton’s Tavern is a bar operated by defendants-appellants Arthur Eugene Hughes, Linda Sue Ball, LB LLC, Inc. a.k.a. LB LLC d.b.a. Knowlton’s Tavern (“Knowlton’s LLC”), and defendant Spike Properties, LLC in Northside. Beginning in 2014, the Northside community began having significant problems with the criminal activities of the street gang called the Northside Taliban.

During the period of 2016 to 2017, five people had been shot at or near the bar. Police had pushed the Northside Taliban out of another Northside bar by having it closed, and they seemed to move to Knowlton’s Tavern. The owners were warned that this might occur before it did, but they did not proactively prevent it from occurring. Police conducted a liquor inspection of the premises in 2017. When they arrived, a patron tried to run away. He was arrested after heroin was found on his person. Police also found a bag of oxycodone on the floor of where the patron had been sitting. The owners were advised of this. The summer of 2017 saw a number of shootings involving members of the Taliban. By the end of 2017, neighbors became so frustrated that they offered to buy the bar. Police continued to inform the owners about the drugs and violence occurring in the bar, but nothing changed. Eventually, police began sending confidential informants into the bar to buy drugs. They were able to buy marijuana and crack cocaine. During this investigation, a drive-by shooting occurred involving members of the Taliban at the bar.

State of Ohio v. James Thomas, All American Bail Bonds, Allegheny Mutual Casualty Co.
Case #C190295

Quote from Judgment Entry:

On March 30, 2015, James Thomas, a resident of Florida, was arrested while visiting Ohio. Appellant All American Bail Bonds (“All American”) posted a surety bond in the amount of $60,000 on April 3. On April 8, Thomas was indicted on two counts of receiving stolen property, and one count of possession of criminal tools. On April 9, Thomas was personally served with the notice of his arraignment. On April 17, Thomas failed to appear for arraignment, as he had left Ohio and returned to Florida. A warrant was issued and the bond was ordered forfeited. On June 8, All American and its insurer, appellant Allegheny Mutual Casualty Co. (“Allegheny Mutual”), filed a motion to set aside the bond forfeiture because Thomas had been arrested in Florida on May 6. It appears from the record he was arrested on a probation violation. On October 15, the magistrate ordered the bond forfeited. All American and Allegheny Mutual filed objections to the order, which remained pending for some time. Thomas was eventually sentenced to 17 years in prison in Florida. The state never sought to extradite Thomas from Florida, and the trial court overruled the objections.

State of Ohio v. Roosevelt Barron
Case #C190219

Quote from Judgment Entry:

In 1992, defendant-appellant Roosevelt Barron pleaded guilty to a murder he had committed in 1991. He was sentenced to 15 years to life.

In 2018, he filed a motion to correct his sentence, arguing that the trial court had failed to notify him of postrelease control. The trial court denied his motion. Barron filed two notices of appeal, but only submitted an appellate brief with an assignment of error for our review under the appeal numbered C-190209. Because Barron did not pursue his other appeal, we hereby dismiss the appeal numbered C- 190219.

In his single assignment of error, Barron contends that his sentence is contrary to law and thus, the trial court erred in denying his motion. We disagree.

Jesse Risch v. Toya Samuel
Case #C190159

Quote from Judge Myers' Opinion:

Toya Samuel appeals the judgment of the Hamilton County Municipal Court in this dispute with her former landlord, Jesse Risch. In two assignments of error, Samuel argues that the court erred by failing to award her attorney fees for Risch’s improper attempt to recover possession of the premises and by failing to give her credit for a security deposit.

Beginning in 2011, Samuel’s mother, Janie Samuel, rented the second and third floors of a building at 869 Hutchins Avenue to house disabled residents of a group home she operated. She paid $750 per month in rent.

In April 2017, Risch purchased the building, and Janie Samuel continued to pay rent of $750 per month as a month-to-month tenant. Rent was due on the 15th of each month. The parties did not execute a written lease agreement.

According to Risch, Janie Samuel agreed to pay $200 toward the property’s quarterly water bill and she did so in June 2017. After Janie Samuel died in August 2017, Risch met Samuel for the first time and explained that her mother had been willing to pay $200 per quarter for the water bill.

State of Ohio v. Donald Dawson-Durgan
Case #C190144

Quote from Judgment Entry:

Defendant-appellant Donald Dawson-Durgan advances a single assignment of error on appeal, challenging the Hamilton County Common Pleas Court’s judgment overruling his postconviction petition. We affirm the court’s judgment as modified to dismiss the petition for lack of jurisdiction.

After a jury trial, Mr. Dawson-Durgan was convicted of aggravated murder and aggravated robbery (both accompanied by firearm specifications), as well as having weapons while under a disability. He timely appealed, challenging, among other things, his convictions, however this court affirmed the trial court’s judgment. See State v. Durgan, 1st Dist. Hamilton No. C-170148, 2018-Ohio-2310, ¶ 1. In the wake of our decision, Mr. Dawson-Durgan filed pro se a postconviction petition pursuant to R.C. 2953.21 and 2953.23. In his petition, he asserted his due process rights were violated when, during his trial, a juror saw him in handcuffs, and challenged the effectiveness of his trial counsel when his counsel waived his appearance at various proceedings below. In turn, the trial court, without holding an evidentiary hearing or offering findings of fact and conclusions of law, overruled his petition.

Ehemann Real Estate, LTD., EME Fence Company, Inc., Lamar Advantage GP Company L.L.C. v. Anderson Township Zoning Commission, Anderson Township Board of Trustees
Case #C190038

Quote from Judge Crouse's Opinion:

The case before us concerns an administrative appeal of a zoning dispute between plaintiffs-appellants/cross-appellees Ehemann Real Estate, Ltd., EME Fence Company, Inc., (“EME”) and Lamar Advantage GP Company, L.L.C., (collectively “Lamar”), and defendants-appellees/cross-appellants Anderson Township Zoning Commission and Anderson Township Board of Trustees (collectively “the Township”). Ehemann Real Estate owns property located at 5060 Batavia Pike in Hamilton County, Ohio, and leases the property to EME. EME leases a small portion of the land to Lamar Advantage GP Company, on which Lamar has been operating a legal nonconforming billboard. This case revolves around the Township’s decision that the billboard must be taken down.

The Township cross-appealed the trial court’s judgment on the administrative appeal, and argues in two assignments of error that the court erred when it reversed the Township’s decision that required the billboard to be taken down.

Lamar appealed the trial court’s judgment on its constitutional action, and argues in two assignments of error that the court erred in denying Lamar’s motion for summary judgment and granting the Township’s motion for summary judgment on Lamar’s constitutional claims, and in denying Lamar’s motions to present additional evidence under R.C. 2506.03 as part of the administrative appeal.

We affirm the trial court’s judgment on the administrative appeal and affirm its grant of summary judgment in favor of the Township on Lamar’s constitutional claims. Therefore, we do not reach Lamar’s second assignment of error as it is moot. All other assignments of error are overruled.

State of Ohio v. Christopher Dangerfield
Case #C190022

Quote from Judgment Entry:

Defendant-appellant Christopher Dangerfield appeals the Hamilton County Common Pleas Court’s judgment overruling his “Motion to Correct Void/Invalid Sentence.” We affirm the court’s judgment as modified to dismiss the motion.

On April 15, 2013, Dangerfield was convicted of aggravated murder and sentenced to a prison term of life with parole eligibility after 25 years and a mandatory five-year period of postrelease control. Eight days later, the trial court entered a “correct[ed]” judgment of conviction, nunc pro tunc to April 15, 2013, removing the unauthorized term of postrelease control and including, instead, notification concerning parole.

State of Ohio v. David Chase
Case #C190013

Quote from Judge Myers' Opinion:

David Chase appeals his conviction for failing to provide notice of a change of address in violation of R.C. 2950.05, Ohio’s sex-offender-verification law. Because the state failed to prove that Chase’s address changed, we reverse the conviction and discharge Chase from further prosecution.

Chase was convicted in 2017 of pandering obscenity involving a minor. As a Tier II sex offender, he was required to register with the sheriff and verify his address every 180 days for 25 years. See R.C. 2950.06(B)(2) and 2950.07(B)(2).

At trial, the state presented evidence that in March 2018, Chase was homeless and registered his address with the Hamilton County Sheriff’s Office as the Remke Market parking lot at 5218 Beechmont Avenue. Six months later, on October 9, 2018, Chase met with Deputy Margo Shari at the sheriff’s office to verify his address.

According to Deputy Shari, when dealing with a homeless sex offender, the sheriff’s office generates a map and instructs the offender to circle on the map the area where the offender intends to stay. In this case, she presented an aerial photographic map of the Remke Market parking lot to Chase, and he a circled a corner of the lot to identify the area where he intended to stay.