Friday First District Roundup 4-23-21

State of Ohio, Ex Rel. Jeffrey Neal v. City of Cincinnati, Ohio 
Case #C200202
Quote from Judge Bergeron's Opinion:
Relator-appellee Jeffrey Neal, a Cincinnati firefighter, applied for a promotion to captain, but claims that he lost out on that promotion because his exam was interrupted by buzzing cellphones and distracted examiners. The results tallied him as 42nd out of 54 applicants, with only the top 25 qualifying for promotion. In the aftermath of the allegedly tainted test, Lieutenant Neal filed for a writ of mandamus, challenging his exam results and seeking the promotion notwithstanding his score. The trial court agreed, ordering the city to promote Lt. Neal to captain with back pay, along with attorneys’ fees. However, we find that Lt. Neal did not demonstrate any clear legal right—or duty—to be promoted to captain on the record before us, thus precluding the extraordinary remedy of mandamus. We therefore reverse the trial court’s judgment.


State of Ohio v. Isaac Converse 
Case #C190480
Quote from Judge Myers' Opinion:
Defendant-appellant Isaac Converse appeals his conviction for failing to verify his address in violation of R.C. 2950.06. He first argues that his conviction was unconstitutional because it utilized a juvenile adjudication as the basis for his duty to register. He also argues that that his trial counsel rendered ineffective assistance and that the trial court erred as a matter of law in including a 36-month term of incarceration as a potential sentence for a community-control violation in the sentencing entry.
We hold that it was not error to utilize Converse’s juvenile adjudication as an element of the offense for a violation of R.C. 2950.06 and that Converse did not receive ineffective assistance from his trial counsel. But because the inclusion in the sentencing entry of a 36-month sentence for a community-control violation was a clerical error, we remand for the trial court to correct that clerical error through a nunc pro tunc entry. The judgment of the trial court is otherwise affirmed.


QFS Transportation, LLC v. Wall Street Systems, Inc. 
Case #C200114
Quote from Judge Bergeron's Opinion:
In this clash between business competitors over the affections of an agent, the jilted competitor accuses the other of improperly poaching the agent; and the other counters by claiming that the whole litigation is a sham, evidencing unfair competition perpetrated by the rival. Naturally, the two squared off and embarked on epic litigation, with claims and counterclaims swirling. Regardless, surveying the record, the trial court found that neither party managed to raise an issue of material fact with regard to its respective claim, and granted cross-motions for summary judgment. Each party remains dissatisfied with this result, prompting an appeal and cross-appeal—but we find their challenges unavailing, and we affirm the trial court’s judgment. 


Vladimir Bogdanov v. Sofiane Ahres, LM General Insurance Company 
Case #C190660
Quote from Judge Bergeron's Opinion:
In this case arising out of a fender-bender, plaintiff-appellant Vladimir Bogdanov sued the other driver, claiming that the accident caused a disc herniation in his lower back. Despite admitting liability, the other driver contested whether the accident actually caused any injuries, offering up an expert to dispute causation. The case proceeded to trial and the jury found for the defendant. On appeal, Dr. Bogdanov faults the expert’s testimony as tainted by hearsay (after the expert referenced unnamed medical studies) as well as permeated by leading questions. After reviewing this testimony in detail, however, we conclude that the trial court did not abuse its discretion in permitting the expert’s testimony. We accordingly affirm the trial court’s judgment. 


State of Ohio v. Shaquan Johnson 
Case #C190659
Quote from Judge Bergeron's Opinion:
Following a bench trial, the court found defendant-appellant Shaquan Johnson guilty of assault and domestic violence for attacking his girlfriend, and it sentenced him to 180 days in jail after merging the domestic violence charge with the assault. Mr. Johnson now challenges the weight and sufficiency of the evidence for the assault conviction, attacking the evidence underlying his conviction. But we see nothing amiss in the sufficiency of the evidence or the court’s evaluation of it, and we accordingly affirm Mr. Johnson’s assault conviction. We decline, however, to review the trial court’s domestic violence finding because that charge merged with the assault charge. We therefore overrule both assignments of error and affirm the trial court’s judgment. 


State of Ohio v. Steven James Ward 
Case #C190656
Quote from Judge Winkler's Opinion:
Defendant-appellant Steven James Ward appeals from the trial court’s judgment revoking his community control and imposing consecutive 18- month prison terms. In his sole assignment of error, Ward challenges only his sentences, not the finding of the community-control violations. He argues the trial court erred by imposing the prison terms without earlier complying with the notification provisions found in R.C. 2929.19(B)(4). The state concedes the error.
Under Ohio law, a court may not impose a prison term for a community-control violation in a felony case unless the court has “strict[ly] compli[ed]” with certain statutory-notification requirements. See State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, 814 N.E.2d 837, ¶ 19, 24 and 29, interpreting R.C. 2929.19(B)(5), now R.C. 2929.19(B)(4), and R.C. 2929.15(B); State v. Olverson, 1st Dist. Hamilton Nos. C-170018 and C-170019, 2017-Ohio-9188, ¶ 11 and 14.


State of Ohio v. Lawrence Sipple 
Case #C190462
Quote from Judge Crouse's Opinion:
Defendant-appellant Lawrence Sipple has appealed his conviction for attempted voyeurism in violation of R.C. 2907.08(D), arguing in two assignments of error that (1) the conviction was based upon insufficient evidence and against the manifest weight of the evidence, and (2) the trial court failed to properly impose the sex offender classification in its sentencing entry. For the following reasons, both assignments of error are overruled.


State of Ohio v. Sierra Smith 
Case #C200106
Quote from Judge Bergeron's Opinion:
Prompted by jealousy, a relational turf war resulted in a telecommunications harassment conviction after defendant-appellant Sierra Smith launched a threatening Facebook message to her boyfriend’s ex. On appeal, Ms. Smith attacks the trial court’s credibility determinations, arguing that her conviction runs afoul of the weight of the evidence. After reviewing the record, we conclude that the trial court did not lose its way in evaluating the evidence, and we affirm Ms. Smith’s conviction.


Michael Cunningham v. Michael J. Auto Sales
Case #C200087
Quote from Judge Bock's Opinion:
Defendant-appellant Michael J. Auto Sales (“Auto Sales”) appeals the trial court’s judgment, which determined that Auto Sales sold a vehicle to plaintiffappellee Michael Cunningham with prior knowledge of the vehicle’s faulty transmission and failed to disclose the defect. For the reasons stated herein, we affirm. 


State of Ohio v. William Smith 
Case #C190558
Quote from Judge Bergeron's Opinion:
The statute that provides for applications for DNA testing for criminal defendants mandates that, in pertinent part, the trial court must explain “the reasons for the acceptance or rejection” of the application. R.C. 2953.73(D). The trial court here rejected defendant-appellant William Smith’s application for postconviction DNA testing without any hint of an explanation. Because the trial court failed to comply with the express terms of the statute, we must remand this case on that narrow basis.
In 2015, Mr. Smith was charged with killing two lifelong friends, Ms. Owens (age 57) and Mr. Jackson (age 72), in his apartment. Mr. Smith did not deny that he killed his friends, but insisted that he acted in self-defense. At his trial in 2017, the jury rejected Mr. Smith’s self-defense theory and convicted him on two counts of murder. On appeal, we affirmed those convictions. State v. Smith, 1st Dist. Hamilton No. C-170028, 2018-Ohio-2504, ¶ 74. 


Anthony McClain v. State of Ohio 
Case #C200195
Quote from Judge Myers' Opinion:
Anthony McClain appeals the judgment of the Hamilton County Common Pleas Court, following a bench trial, in favor of the state of Ohio on his statutory claim for a determination that he is a wrongfully imprisoned individual. The basis for McClain’s appeal is his assertion that he was entitled to a trial by jury. Because McClain had no constitutional or statutory right to a jury trial, we hold that the trial court properly overruled his jury demand and we affirm the court’s judgment.
I. Procedural History
In 1995, McClain was indicted for murder and an accompanying firearm specification. After a jury trial, he was convicted of the offenses and was sentenced to a prison term of 15 years to life for the murder offense, to be served consecutively to a three-year prison term for the firearm specification. This court affirmed McClain’s conviction on appeal, and the Supreme Court of Ohio declined to review the matter. State v. McClain, 1st Dist. Hamilton No. C-950859, 1996 WL 487931 (Aug. 28, 1996), jurisdictional motion overruled, 77 Ohio St.3d 1515, 674 N.E.2d 370 (1997).


State of Ohio v. Kevin Roberson 
Case #C200074
Quote from Judge Zayas' Opinion:
Defendant-appellant Kevin Roberson appeals the Hamilton County Common Pleas Court’s judgment overruling his 2020 “Motion to Vacate Void Judicial Sanction.” Because we lack jurisdiction to review that judgment, we dismiss the appeal.
Procedural Posture.
In 2016, in the case numbered B-1505520, Roberson was convicted upon guilty pleas to attempted felonious assault and carrying a concealed weapon. The trial court imposed prison terms of “1 yr.” each for attempt, its accompanying firearm specification, and carrying a concealed weapon and imposed a period of postrelease-control supervision of up to 3 years. Roberson did not appeal his convictions. Upon his release from prison in 2017, he was placed on postrelease control.


State of Ohio v. Chyna Hamilton 
Case #C200042
Quote from Judge Crouse's Opinion:
Defendant-appellant Chyna Hamilton was convicted of operating a vehicle while under the influence of alcohol in violation of R.C. 4511.19(A)(1)(a) and speeding in violation of R.C. 4511.21. She has appealed, arguing in three assignments of error that (1) her right to due process was violated by the law enforcement officer’s avoidance of the field of view of his police cruiser camera while administering the field-sobriety tests, (2) she was denied the effective assistance of trial counsel, and (3) her conviction for driving while under the influence of alcohol was based upon insufficient evidence and against the manifest weight of the evidence. Hamilton does not challenge her speeding conviction.
Hamilton filed two notices of appeal, but both appeals address the same issues. Therefore, we dismiss the appeal numbered C-200042. In the appeal numbered C-200041, we overrule all assignments of error and affirm the trial court’s judgment. 


Timothy Kellard v. City of Cincinnati 
Case #C200029 
Quote from Judge Bergeron's Opinion:
For two years after the Ohio General Assembly passed legislation invalidating its gun-related employment policies, the city of Cincinnati dragged its feet, failing to implement the necessary revisions. Frustrated by this delay, a disgruntled employee sued, which spurred the cogs of local government into motion. Within four days, and before the trial court ever convened a hearing in this case, the city’s policies complied with the relevant statute. Yet the employee remained unsatisfied, and he convinced the trial court that only injunctive relief could prevent the city’s future defiance of Ohio law.
The trial court awarded a litany of remedies in this case, including a permanent injunction, declaratory judgment, costs, attorneys’ fees, and damages. The parties, in turn, present us with a variety of issues on appeal and cross-appeal. We conclude that, although the employee is entitled to some attorneys’ fees, the trial court exceeded the bounds of its subject matter jurisdiction by awarding declaratory and injunctive relief for a purely speculative future harm. We sustain the city’s two assignments of error in part, overrule the employee’s two cross-assignments of error, and modify the trial court’s attorney fee award.