Friday First District Roundup! (8/12)

8/10/2022
In re: L.H.
C-220161
Quote from Judge Bock:
In November 2018, the Hamilton County Department of Job and Family Services (“JFS”) filed a complaint for emergency interim custody of L.H. and his older sibling, M.W., after JFS received reports of hazardous conditions in the home and that L.H.’s father, R.D., was abusing J.H. JFS alleged that, when J.H. was at the hospital in preterm labor with L.H, R.D. choked J.H. in the hospital room, spat on her, told her that he hoped that the baby would die, and threw her call light into
the bathroom so that she could not reach it, all while she screamed for help.
J.H. tested positive for marijuana when L.H. was born in October. Nevertheless, L.H. was discharged to J.H. from the hospital. She and L.H. lived with A.H., L.H.’s maternal grandmother.
{¶11} J.H.’s case plans required her to engage in domestic-violence counseling, individual counseling, and parenting education. An April 2019 semiannual report (“SAR”) reflected that J.H. had completed “Women Helping Women,” a domestic-violence assessment through the YWCA, and was provided with supportive services under her case plan. J.H. reported that she was no longer in a relationship with R.D. and did not live with him. But a September 2019 SAR report
reflected that J.H. had stated that she was in a relationship with R.D. and intended to continue that relationship.

Clear and convincing evidence supported the juvenile court’s decision to grant permanent custody of the child to the Hamilton County Department of Job and Family Services where the record demonstrated that mother was afforded a fundamentally fair hearing where the evidence and testimony of each witness was specifically related to each child’s respective matter.
  The record reflects that the trial court’s judgment was supported by clear and convincing evidence under R.C. 2151.414(B)(1)(d) and the best-interest determinations under R.C. 2151.414(D).
JUDGMENT:  AFFIRMED

8/10/2022
State of Ohio v. Alisha Higgins
C-220043
Quote from Judge Bergeron:
On a cold evening in January 2021, shots rang out as bullets crashed into Ms. Lee’s second story townhouse bedroom. Prompted to get out of bed by debris falling from her ceiling and wall, Ms. Lee peeked out her window blinds to see a person she identified as Ms. Higgins slowly driving past her home. Ms. Lee and Ms. Higgins had a simmering feud stemming from their apparently overlapping relationship with a gentleman who happened to be at Ms. Lee’s house when the shooting occurred. Ms. Lee testified that as she watched Ms. Higgins drive by, she saw “fire from the gun as [Ms. Higgins] was shooting at my house,” confirming that the sounds she heard earlier were related to bullets coming through the bedroom.
Ms. Lee called 9-1-1 a few minutes later, telling the dispatcher that someone fired shots into her house from a car. When asked by the dispatcher whether she saw the shooter, Ms. Lee identified Ms. Higgins and described the off white SUV that drove down her street. At the bench trial, Ms. Lee told the court that she recognized the car because Ms. Higgins had driven by in that same SUV on the previous four or five days as well, presumably searching for their mutual acquaintance. Ms. Lee testified that, in addition to the car, she could see the shooter’s head and hair but not her actual face. That outline, in her testimony, matched Ms. Higgins.

Defendant’s conviction for improperly discharging a firearm into a habitation was supported by sufficient evidence and was not against the manifest weight of the evidence when the state presented credible eyewitness testimony from the resident that she recognized the car from which the shot had been fired as defendant’s, she recognized the outline of defendant’s head and hair as defendant drove the car past the home, she called 9-1-1 and identified defendant as the shooter within minutes of the shooting, and a mutual friend who had generated animosity between the two could be heard in the background of the 9-1-1 tape, and where the physical evidence supported the resident’s testimony.
JUDGMENT: AFFIRMED

08/10/2022
State of Ohio v. Jason McVean
C-210459, C-210460
Quote from Judge Bergeron:
In 2020, the state charged Mr. McVean with violating R.C. 4511.19(A)(1)(a) by operating a vehicle while under the influence of alcohol or a drug of abuse (“OVI”), and speeding in violation of R.C. 4511.21(D). After trial, the trial court acquitted Mr. McVean of the OVI offense but found him guilty of speeding. The next year, Mr. McVean applied to seal the records of both the acquittal and the conviction.
At the hearing on his motion to seal the records, the trial court noted that speeding convictions are generally not eligible for sealing. Mr. McVean’s counsel pointed out that one subsection of the Ohio Revised Code allows for the sealing of speeding convictions when they are charged in connection with an offense for which a defendant is found not guilty. See State v. Christen, 1st Dist. Hamilton Nos. C-200158 and C-200159, 2021-Ohio-1647, ¶ 15-16 (“Applying the plain language of the statute, if the sole conviction is under [R.C. Chapter 4511] or a substantially similar municipal ordinance,” the record of a dismissed OVI charge is also eligible for sealing.). Ohio law carves out this narrow exception, according to Mr. McVean’s counsel, because of the logistical impossibility of sealing only the OVI acquittal when the OVI and the speeding offense stem from the same ticket.
Where defendant was acquitted of OVI but convicted of speeding and defendant filed an application to seal both records, the state presented no governmental interest in maintaining records that outweighed defendant’s interest in sealing, and the state presented no objection to sealing despite being given multiple chances to do so, the trial court abused its discretion in denying defendant’s application to seal his records.  [But see DISSENT: The record fails to demonstrate that the judge who presided over defendant’s bench trial six months earlier that resulted in the OVI acquittal and the speeding conviction acted arbitrarily, unreasonably, or unconscionably when he determined the state’s need to access the records for case consideration if defendant was again charged with OVI outweighed the defendant’s general privacy interest in sealing the records.]
JUDGMENT: REVERSED AND CAUSE REMANDED

08/10/2022
State of Ohio v. Rickey Brown
C-210355
Rickey Brown was indicted for having weapons while under a disability, two counts of aggravated robbery with specifications and two counts of robbery. Counts two and three named Sharlene Johnson as the victim, and counts four and five named Holly Smothers as the victim. The charges arose when Smothers arranged to purchase a vehicle for $600 from “Danny Buckley,” who was later identified as Brown. When Smothers arrived with Johnson, the seller brandished a gun and took the money. Brown pled not guilty and proceeded to a bench trial.
Brown had given notice that he intended to present an alibi defense. According to the state’s discovery response, “Sharlene Johnson and Holly Smothers positively identified the Defendant through photo line-ups as the individual who pulled the gun on them with 100% certainty.”

Defendant’s conviction for robbery was not supported by sufficient evidence where the evidence failed to establish that the defendant threatened harm to coerce the alleged victim to relinquish property.  [But see DISSENT: Where the owner of the money handed it to a friend, defendant pulled out a gun and demanded the money from the friend, defendant undoubtedly saw the exchange of the money from the owner to the friend, and defendant was in close proximity to the owner and the friend while brandishing a gun, both the owner of the money and the friend are victims, and defendant’s conviction for robbery of the owner was supported by sufficient evidence.]
The trial court abused its discretion by denying defendant’s motion for a new trial because the state’s failure to disclose material evidence of the victim’s investigation that led to her identification of the defendant as the robber affected defendant’s substantial rights.  [But see

DISSENT: The trial court did not err in denying defendant’s motion for a new trial where the evidence was not exculpatory and the evidence was available at trial and defendant did not raise the alleged Brady violation.]
JUDGMENT:   REVERSED, APPELLANT DISCHARGED IN PART, AND CAUSE REMANDED

08/10/2022
State of Ohio v. John Osterman
C-200415
Quote from Judge Bergeron:
Defendant-appellant John Osterman appeals his convictions for two counts of felonious assault, contending that the trial court erroneously conducted a bench trial without an effective jury waiver. We agree because Mr. Osterman never personally acknowledged the jury waiver in open court, and we thus reverse his convictions and remand this cause for a new trial.
In February 2020, Mr. Osterman was indicted for two counts of felonious
assault for allegedly stabbing his roommate with a kitchen knife.
After a bench trial was held, the trial court convicted Mr. Osterman of both counts and sentenced him to an indefinite term of 8 to 12 years under the Reagan Tokes Law. This appeal followed, in which Mr. Osterman maintains that (1) the trial court erroneously conducted a bench trial because his purported jury waiver was not made in open court under R.C. 2945.05, and (2) his sentences must be vacated because the Reagan Tokes Law is facially unconstitutional. Based on our resolution of Mr. Osterman’s first assignment of error, it obviates our need to consider the constitutionality of the Reagan Tokes Law.
            The trial court violated defendant’s right to a jury trial by conducting a bench trial because defendant’s counsel’s acknowledgement of the jury waiver was insufficient to meet the “open court” requirement under R.C. 2945.05.
JUDGMENT:   REVERSED AND CAUSE REMANDED

08/12/2022
Dionte Price v. Christina Brooks
C-210668
Quote from Judge Winkler:
The record shows that Brooks was the owner of property located at 1284 Shepard Lane. Dionte and Brooks entered a written lease agreement for rental of the property. Demetrius Price (“Demetrius”), Dionte’s brother, and Orlando Crawford, his cousin, were also listed as tenants. The agreement expired on June 10,
2020, and became a month-to-month tenancy.
Before the written lease expired, Dionte was incarcerated. Demetrius died on June 27, 2020. Crawford subsequently moved out of the premises. Consequently, the rent was not paid for July 2020. Nevertheless, Brooks never filed a forcible-entry-and-detainer action.
Shanae Price (“Shanae”), Dionte’s sister, testified at the hearing before the magistrate. On September 1, 2020, Dionte executed a durable power of attorney naming Shanae as his attorney-in-fact, and she testified on his behalf. She stated that on July 11, 2020, she went to retrieve her brother’s property, and she found that the locks were changed, and his property was on the front porch. Brooks told her that she could not enter the premises and that Brooks was going to change the locks. They got into an “altercation,” which caused Shanae to call the police. A police officer arrived, and Shanae and Brooks agreed that Shanae would come back, and no one was arrested. When she returned, Dionte’s belongings were gone. She estimated that they had a value of between $3000 and $10,000.

Plaintiff tenant met his burden to show that defendant landlord improperly violated the prohibitions on self-help evictions in R.C. 5321.15(A) where the evidence showed that plaintiff was incarcerated, he had asked the landlord to allow his girlfriend “to get some stuff out of the house,” he never gave the landlord permission to remove all of his belongings although another tenant had told the landlord to dispose of anything left, and plaintiff’s sister came to the house and found that plaintiff’s belongings had been removed.
Although the owner of property may testify as to the value of his or her property, the plaintiff’s evidence of the value of his property was too speculative to prove value. 
Plaintiff was not entitled to recover attorney fees because if he was not awarded damages for a violation of the self-help statute, and therefore, an award of attorney fees was not warranted.                       
JUDGMENT:   AFFIRMED