Friday First District Roundup 8-27-21

State of Ohio v. James Rhymer 
Case # C200164
Quote from Judge Crouse's Opinion:
Defendant-appellant James Rhymer was convicted of voluntary manslaughter and felonious assault. He has appealed, arguing four assignments of error that (1) the trial court failed to properly instruct the jury on the elements of self-defense, (2) the trial court erred when it instructed the jury on the lesser-degree offense of voluntary manslaughter, (3) he was denied effective assistance of counsel, and (4) the verdict was against the manifest weight of the evidence. We overrule all assignments of error and affirm the judgment of the trial court.
Factual Background
Marilyn Kancy testified that she and Rhymer have a son ("J") together and share custody. On June 29, 2018, Rhymer and Kancy met at a subdivision to exchange custody of J. They parked their cars on the side of the road close to the subdivision's entrance. At the time Kancy was dating the victim, Thomas Landacre.
Kancy testified that Rhymer had just buckled J into his car seat when Landacre, who had been working near the back of the subdivision, drove up and started yelling at Rhymer. Kancy ran to get in between the two men. She testified that Rhymer retrieved a handgun from his car. Landacre "got away" from Kancy and approached Rhymer. She heard a gunshot and turned to see Landacre collapse to the ground with blood coming out of his neck. Rhymer got in his car and drove away. Kancy testified that Landacre did not have a weapon in his possession and the two men never touched each other during the confrontation.

State of Ohio v. D'Andre Covington 
Case #C190731
Quote from Judge Myers' Opinion:
Following a jury trial in which he waived his right to counsel and represented himself, defendant-appellant D'Andre Covington was found guilty of falsification and failure to disclose personal information.
Covington now appeals, raising three assignments of error. First, he argues that the trial court erred in failing to dismiss the charges against him because he was not brought to trial within the allotted speedy-trial time. Second, he argues that the trial court erred by denying his right to discovery. And third, he argues that the trial court erred in failing to dismiss the case as a penalty for the state's failure to provide him with a bill of particulars. Finding no merit to Covington's arguments, we affirm the trial court's judgment.

Teresa Nichols, Brad Nichols v. Abubakar Atiq Durrani, M.D., Center for Advanced Spine Technologies  
Case #C210224 
Quote from Judge Bergeron's Opinion: Plaintiffs-appellees Teresa and Brad Nichols filed suit against Dr. Durrani and the Center for Advanced Spine Technologies (CAST) in March 2016, alleging various forms of medical malpractice. Following a jury trial and verdict for the plaintiffs, all parties filed postjudgment motions. Dr. Durrani and CAST moved for judgment notwithstanding the verdict, a new trial, or remittitur, which the Nichols filed a motion for prejudgment interest and attorney fees. The trial court issued an order resolving the defense motion and entered judgment for the Nichols. But before the trial court had a chance to rule on the motion for prejudgment interest and attorney fees, the Nichols withdrew it. Unsure whether this withdrawal endowed the trial court's previous order with finality, Dr. Durrani and CAST filed a notice of appeal within 30 days. See App.R. 4(A)(2) ("[A] a party who wishes to appeal from an order that is not final upon its entry but subsequently becomes final *** shall file the notice of appeal required by App.R. 3 within 30 days of the date on which the order becomes final.")
Having identified uncertainty as to the finality of judgment, this court sua sponte ordered the parties to submit supplemental briefing regarding our jurisdiction. We received only one such brief, in which Dr. Durrani and CAST acknowledge that the court lacks jurisdiction and suggest that their notice of appeal should be treated as premature. We agree regarding the lack of finality and issue this opinion to offer clarity to future parties who find themselves in a similar predicament.

City of Madeira v. Philip Douglas Oppenheimer 
Case #C200458
Quote from Judge Bergeron's Opinion:
After plaintiff-appellant city of Madeira fended off three lawsuits from one of its residents, its frustration overflowed and it demanded that the trial court declare him a vexatious litigator under R.C. 2323.52. But the city fell well short of the high burden necessary to justify such relief, and the trial court granted summary judgment in the resident's favor. Madeira now appeals and, because we agree that the city cannot satisfy the statutory elements on the facts it presented, we affirm.
This case represents the culmination of a series of feuds between a politically-active resident, defendant-appellee Philip Oppenheimer, and the city of Madeira. As relevant for this appeal, Mr. Oppenheimer filed three cases between 2015 and 2017 that Madeira depicts as vexatious. Mr. Oppenheimer first tried to block Madeira from selling land in its historic district, insisting that the city's charter required it to preserve historic "properties.: The trial court dismissed the case and we affirmed, holding that the charter defined "properties" as structures, which did not encompass surrounding land. Mr. Oppenheimer next appealed the city's approval of a commercial building permit, but the trial court dismissed the case because he filed the appeal prematurely-before the planning commission issued its written order. In his last suit, Mr. Oppenheimer challenged a proposed charter amendment, faulting the city council for failing to follow various technical requirements outlined in its charter. The trial court again ruled against Mr. Oppenheimer and we ultimately affirmed on mootness grounds because the election had been certified by the time the case arrived on our desk.

State of Ohio v. Orlando Howell 
Case #C200360
Quote from Judge Bergeron's Opinion:
Defendant-appellant Orlando Howell struck a plea deal that allowed him to stay out of prison until sentencing, but he agreed to the imposition of maximum and consecutive sentences if he got into trouble before his sentencing hearing. Unfortunately for him, during that interim period, he received new charges and otherwise violated the terms of his release, so the trial court followed the plea agreement and did exactly what it had warned-it imposed maximum, consecutive sentences. Mr. Howell now appeals, arguing that the trial court should have allowed him to withdraw his guilty pleas and, alternatively, that we should modify his sentences to run concurrently, Because the trial court acted within it discretion and did not impose sentences contrary to law, we overrule Mr. Howell's two assignments of error and affirm the trial court's judgment.

State of Ohio v. Ugbe Ojile 
Case #C200340
Quote from Judge Bock's Opinion:
Defendant-appellant Ugbe Ojile appeals the trial court's September 2020 judgment denying all of his then-pending motions. We reverse the part of the judgment denying Ojile's 2020 motion for leave to move for a new trial because Ojile was unavoidably prevented from timely discovering and presenting the evidence upon which his new-trial motion depended.
In 2010, Ojile, Kenyatta Erkins, and Amy Hoover were charged with multiple counts of aggravated robbery, robbery, conspiracy to commit aggravated robbery and complicity to robbery. They were accused of robbing various individuals after following them home from Indiana casinos. The trial court tried Ojile and Erkins together. Hoover accepted a plea offer from the state in exchange for her testimony at their trial.
Tyrone Tanks, a jailhouse informant incarcerated with Ojile, testified at trial. According to Tanks, Ojile had confessed to his involvement in the robberies of Daniel Duncan, Tien Dao and Michael Weisbrod. Following this court's decisions on direct appeal and on appeal from the denial of his 2016 postconviction petition, Ojile stood convicted on three counts of aggravated robbery, five counts of complicity, and single counts of conspiracy and robbery.
Ojile also sought relief from his convictions under Crim.R. 33. In 2011, acting pro se, he filed a presentence motion for a new trial alleging prosecutorial misconduct-he asserted that the state suborned "perjured" testimony from jailhouse-informant Tanks and elicited "incorrect and misleading" testimony from Hoover. In 2018 Ojile moved for leave to file a motion for a new trial based on newly-discovered evidence. He supported that motion with codefendant Erkin's 2013 affidavit, which exonerated him in the robbery of Daniel Duncan.

State of Ohio v. David Lack 
Case #C200334 
Quote from Judge Bock's Opinion:
Defendant-appellant David Lack appeals his domestic-violence conviction, asserting that there was insufficient evidence to support his conviction and that his conviction was against the manifest weight of the evidence. For the following reasons, we affirm the trial court's judgment.
In July 2020, defendant-appellant David Lack was arrested for domestic violence under R.C. 2919.25(A). Lack's girlfriend, Tamara Ott, was the alleged victim.
The complaint alleged that during a party hosted by Lack and Ott at their home, Lack forced his way into a bathroom that Ott was occupying, grabbed her left wrist, struck her in the back of her arm, and forced her to stay in the bathroom for ten minutes, "causing her to fear for her life." 

State of Ohio v. Brittany Davis   
Case #C200252
Quote from Judge Winkler's Opinion:
Following a bench trial, defendant-appellant Brittany Davis was convicted of one count of theft under R.C. 2913.02 and three counts of criminal damaging or endangering under R.C. 2909.06. She now appeals those convictions, presenting two assignments of error for review. We find merit in her second assignment of error related to the imposition of costs. Consequently we reverse the trial court's judgment in the case numbered 20CRB-7651 regarding costs. We affirm the trial court's judgment in all other respects.
The victim, Jaisha Broner, testified about three separate incidents involving Davis. The first occurred on December 15, 2019. Broner went out to dinner with the father of her child, Edward Holmes. Holmes is also the father of one of Davis' children. Broner and Holmes returned to Broner's home after dinner to get some clothing for her children, who were staying at her mother's house.
After about ten minutes, Broner heard "bamming, like somebody was beating on something." Although the noise went on for about two minutes, she ignored it because she "didn't know what it was." When the noise started again several minutes later, she opened her door and saw Davis in the back seat of her car with the door open. Davis left in a silver car when she saw Broner and Holmes.
When Broner went out to her car, the first thing she noticed was that her tires were flat. She also saw that there were eggs and a bottle of urine in the back seat. A bottle of alcohol has been sprayed all over her child's car seat and the front seat of the car. The gas tank was open, and Broner believed that something had been put in the tank because her car would not start. Additionally, she discovered that her wallet with her identification, credit cards, and $400 to $500 cash was taken.

State of Ohio v. Jacob Stonitsch 
Case #C200174 
Quote from Judge Bergeron's Opinion:
This is a companion case to State v. Martin, 1st Dist. Hamilton No. C-2000067, 2021-Ohio-2599, in which we reversed the trial court's judgment overruling the defendant's motion to suppress. Appellant Jacob Stonitsch was a co-defendant with Abbey Martin, and the search in Martin is the same search at issue here. Given the indistinguishable facts, we adhere to our recent decision in Martin and reach an identical result today. We hold application of the good faith exception to be erroneous on these facts, reverse the trial court's judgment overruling the defendant's motion to suppress and remand for the granting of Mr. Stonitsch's suppression motion.

State of Ohio v. Kent Smith 
Case #C190714 
Quote from Judge Hendon's Opinion:
Defendant-appellant Kent Smith appeals the Hamilton County Common Pleas Court's judgment denying his petition under R.C. 2953.21 et seq. for postconviction relief. Because the common pleas court had no jurisdiction to entertain his late postconviction petition, we affirm the court's judgment.
Smith was tried before a jury on eight felony counts charged in the case numbered B-1507289-A and eleven felony counts charged in the case numbered B-1601998. He was convicted on two counts of aggravated robbery, two counts of aggravated burglary, four counts of burglary, one count of felonious assault, and four counts of having a weapon while under a disability.