Friday First District Roundup 9-24-21

Lori A. McKenna v. Peter J. McKenna 
Case # C210115
Quote from Judge Winkler's Opinion:
Plaintiff-appellant Lori McKenna (“Wife”) appeals the judgment of the trial court granting a motion to reduce spousal support filed by defendant-appellee Peter McKenna (“Husband”). Because we determine that the trial court’s modification of Husband’s spousal-support obligation was not an abuse of discretion, we affirm.
Husband and Wife divorced in July 2018. As part of the divorce decree, the trial court ordered Husband to pay Wife $27,500 per month in spousal support, indefinitely. The trial court specifically retained jurisdiction over the amount and duration of support. Husband filed an appeal from the final divorce decree, and during the pendency of his appeal, Husband moved the trial court to reduce his spousal-support order. After this court decided Husband’s appeal and affirmed the trial court’s judgment, see McKenna v. McKenna, 1st Dist. Hamilton No. C-180475, 2019-Ohio-3807, Husband’s motion to modify proceeded to trial before the magistrate in June 2020.
At trial on the post-decree motion, Husband testified that he continues to be a self-employed plastic surgeon, but that his business has declined because of increased competition, particularly with nonsurgical procedures. Husband introduced testimony and evidence from his accountant that Husband’s taxable income had decreased since the time of the divorce. In 2014, prior to the divorce, Husband had a taxable income of $988,096. In 2017, Husband’s taxable income decreased to $777,716 and remained approximately at that level in 2018 and 2019. 

State of Ohio v. Shiloh Britten 
Case #C200445
Quote from Judge Myers Opinion:
Defendant-appellant Shiloh Britten appeals the trial court’s judgment finding him guilty, following a bench trial, of violating Cincinnati Municipal Code 502.19 for disobeying a traffic-control signal. In two assignments of error, he challenges the sufficiency and the weight of the evidence supporting his conviction. Finding his arguments to be without merit, we affirm the trial court’s judgment.
Factual Background
At trial, the state presented testimony from Montez Coulter that he was involved in a traffic accident on October 21, 2020. Coulter testified that while driving on Hewitt Avenue, he viewed another car approaching Hewitt on Bonaparte Avenue, a side street that dead-ended onto Hewitt. Coulter explained that the car traveling on Bonaparte had a stop sign at the intersection of Hewitt and Bonaparte, but that he did not. Coulter had a clear of view of Bonaparte, and he saw that the car traveling on Bonaparte did not stop at the stop sign or slow down at the intersection of Bonaparte and Hewitt. Rather, the car proceeded into the intersection and turned onto Hewitt without stopping. Coulter swerved in an attempt to avoid a collision, but was unsuccessful. He testified that Britten was the driver of the vehicle that struck him.
Britten testified that he was traveling on Bonaparte toward Hewitt just before the accident occurred, and that he stopped at the stop sign on Bonaparte before turning left onto Hewitt. Britten additionally presented testimony from Hakeem Lanier, who lived on Hewitt and had a view of the intersection of Hewitt and Bonaparte from a window in his home. Lanier testified that he was looking out his window while waiting for Britten to arrive, and that he saw Britten stop at the stop sign on Bonaparte.
The trial court found Britten guilty of violating Cincinnati Municipal Code 502.19, and imposed a $60 fine and court costs. 

Matthew P. Altman, Matthew Frederickson, Andrew Stephenson, Andrew Weller v. Kardous Bayarri Properties, LLC 
Case #C200406
Quote from Judge Bergeron's Opinion:
Four incoming medical students in search of housing near the University of Cincinnati signed a lease several months in advance, relying on the landlord’s promise that they could move in a few days before the school term started. But when they arrived at the property on move-in day, they found it in an alarming state of disrepair and eventually opted to cancel the lease. The landlord insisted— and the trial court agreed—that the tenants could not claim constructive eviction because their tenancy had not yet begun. We disagree with the premise, holding that the tenancy began when the tenants took possession on August 1. We accordingly reverse the trial court’s judgment and remand for further proceedings with this new threshold determination in mind.
Prospective tenants (now appellants) first toured the rental property in June 2019. During this scouting mission, nothing seemed amiss, and a leasing agent for the landlord-appellee—Kardous Bayarri Properties (KBP)—informed the tenants that the lease could begin on August 1, 2019. This start date worked well for the tenants, who wanted to move in and get settled in the house before their medical school activities began on August 5. KBP sent over a draft copy of a lease with a start date of August 1, and cautioned the tenants that another group seemed poised to sign a lease for the house (context indicates that both sides—the tenants and KBP—sought to keep their options open). 

In re: A.G. 
Case #C200402
Quote from Judge Myers' Opinion:
A.G. was adjudicated delinquent for complicity to robbery. He advances the following arguments on appeal: (1) the juvenile court erred in admitting and relying on the robbery victim’s in-court identification of A.G.; (2) the juvenile court abused its discretion by admitting Facebook screenshots; (3) the juvenile court erred by denying his Crim.R. 29 motion and adjudicating A.G. delinquent based upon insufficient evidence; and (4) his adjudication was against the manifest weight of the evidence. Finding no merit in the assignments of error, we affirm the juvenile court’s judgment.
Background Facts and Procedure
At a trial before a juvenile court magistrate, the state presented evidence that, on November 7, 2018, Christopher Schreiber listed two cell phones for sale on Facebook Marketplace. He was selling the phones for two coworkers. A person using the Facebook account of “Drew Skeem” replied to the advertisement. After some texted conversation through the Facebook Messenger application, Schreiber arranged to meet the buyer inside the public library in Madisonville.
As a precaution, Schreiber made a video of himself with the phones for sale and took photos of the phones. He also took screenshots of Drew Skeem’s Facebook profile page and of other photos posted on Skeem’s account, as well as the conversation on Facebook Messenger. 

State of Ohio v. Tylon Thompson 
Case #C200400
Quote from Judge Bergeron' Opinion:
A stop sign violation spiraled into the arrest and conviction of defendantappellant Tylon Thompson for three counts of drug possession. Now facing a 42 month sentence, Mr. Thompson challenges the denial of his suppression motion, an array of evidentiary determinations, as well as his underlying convictions and sentences. After reviewing the evidence and record, we overrule all four of his assignments of error and affirm the judgment below.
This case stems from a College Hill traffic stop in August 2019, when Officer Michael Smith observed a black Hyundai Elantra with heavily tinted windows roll through a stop sign at Elkton Place. Officer Smith pulled the vehicle over and activated his body camera, which captured the entire encounter. Because of the window tint, he approached the car from the passenger side. The passenger-side window was rolled down, with Mr. Thompson seated in the passenger seat and his significant other at the wheel.
Officer Smith informed both occupants of the reasons for the stop and asked for identification, which they provided. As Officer Smith walked back to his cruiser to run the couple’s names through his computer, he expressed concern to accompanying officers about movements Mr. Thompson made around the center console of the car as he approached. Officer Smith’s search of the couple’s names revealed that the driver was driving under a suspended license, and Mr. Thompson did not have a license. Officer Smith then summoned the nearest drug dog, expressing his belief that Mr. Thompson was concealing drugs in the center console area. 

State of Ohio v. Vanecia Porter
Case #C200459
Quote from Judge Bock's Opinion:
Defendant-appellant Venezia Hill (née Vanieciea Porter) (“Hill”) appeals her domestic-violence conviction, asserting that the trial court erred by not granting her Crim.R. 29 motion for an acquittal and that her conviction was supported by insufficient evidence and was against the manifest weight of the evidence.
Facts and Procedure
Hill and her sister, Shelly Porter, went grocery shopping together. The sisters got into a verbal altercation in Hill’s car. Outside of Porter’s residence, the disagreement turned into a physical altercation. After a passerby broke up the fight, Porter went into her apartment. Hill called 911.
A. Porter’s Trial Testimony
Porter testified that, upon arrival at her apartment building, she had exited from Hill’s vehicle and opened the back door to retrieve her groceries. She had shut the door before Hill came around the vehicle and got in Porter’s face. Porter was on the phone with her stepmother during this time.
On direct examination, Porter testified that Hill had initiated physical contact by slapping Porter in the face. She said that Hill had her up against the vehicle with her hands around Porter’s neck, so she pushed Hill to get her off of her. Porter stated that Hill had also slammed her into the ground. A passerby stopped to break up the fight, after which Hill kicked Porter in the stomach. Porter, seven months pregnant, then went upstairs to change her pants and check her injuries. Porter was taken to the hospital to have her injuries examined.

OTR Housing Associates, LTD., Western & Southern Life Insurance Company v. Cincinnati School District Board of Education, Board of Revision of Hamilton County, Ohio, Dusty Rhodes, Auditor, Hamilton County, Ohio
Case #C200321
Quote from Judge Winkler's Opinion:
This case involves the tax valuation of government subsidized lowincome housing property. The trial court reversed the decision of the Hamilton County Board of Revision (“BOR”) that granted a substantial reduction from the Hamilton County auditor’s initial valuation of the property, and then reinstated the auditor’s higher valuation as a default valuation. Appellant property owners OTR Housing Associates, Ltd., (“OTR Housing”) and Western & Southern Life Insurance Company (“Western & Southern”) argue the trial court misapplied the law when rendering its judgment. Appellee Cincinnati School District Board of Education (“school board”) argues for an affirmance.
We reverse the trial court’s judgment because we find the trial court misapplied the law when rendering its decision by rejecting the property owners’ competent and persuasive appraisal evidence and by reinstating the auditor’s initial valuation as the default valuation. Further, we restore the BOR’s reduced valuation, as requested by the property owners, noting the auditor never defended its initial valuation and instead concurred with the BOR’s reduced valuation. 

State of Ohio v. Vicky Vandergriff
Case #C200282 
Quote from Judge Bergeron's Opinion:
What started as a routine shopping trip ended with an assault conviction after a verbal confrontation between defendant-appellant Vicky Vandergriff and another customer mushroomed into an all-out brawl. Ms. Vandergriff now appeals, claiming a violation of her due process rights and portraying her conviction as against the weight and sufficiency of the evidence. Because Ms. Vandergriff invited the trial court’s decision that she now challenges on appeal, we reject her due process challenge. We also conclude that her conviction was supported by the weight and sufficiency of the evidence and affirm the trial court’s judgment.
Ms. Vandergriff and her wife went to Dollar Tree with codefendant Heaven Albright. But while paying for her merchandise, Ms. Vandergriff became angry with two of the cashiers and began to verbally accost them, even threatening to beat one of them with her crutch (she was recovering from a knee injury). Another customer in a nearby check-out lane, John Neidich, took umbrage with Ms. Vandergriff’s behavior and intervened by informing her that her actions weren’t necessary. Instead of deescalating the situation, Mr. Neidich’s remark infuriated Ms. Vandergriff, prompting her to retort that he had better shut his mouth or she would attack him as well. A war of words ensued between the two, eventually escalating into a physical melee as they tumbled out of the store. 

State of Ohio v. Robert P. Baston 
Case #C200204
Quote from Judge Myers' Opinion:
Defendant-appellant Robert P. Baston appeals the trial court’s entry denying his application to have records sealed, arguing in a single assignment of error that the trial court’s denial of his application was in error. Because the trial court erred in determining that Baston was ineligible to have his records sealed because he was serving a prison term for an unrelated offense, we reverse the trial court’s judgment and remand for further proceedings.
Factual Background
Baston filed an application to have his records sealed, seeking to seal a domestic-violence charge in the case numbered B-9306644 that was ignored by the grand jury. At the time the application was filed, Baston was (and still is) serving a 40-year prison sentence for child molestation.
The state objected to Baston’s application to have records sealed, arguing that Baston was ineligible to have his records sealed because he had a pending criminal matter, specifically his incarceration on the child-molestation offense. The state alternatively argued that, even if Baston was eligible to have his records sealed, the trial court should exercise its discretion to deny his application.
The trial court issued an entry denying Baston’s application to have his records sealed. The entry stated that “the Court finds the application not well taken and it is therefore denied. If Ohio law were to change in a manner that would render the defendant eligible for the sought after relief, then this denial is without prejudice to refiling.” Baston appealed the trial court’s entry. 

State of Ohio v. Troy Duncan 
Case #C200079
Quote from Judge Winkler's Opinion:
The state of Ohio appeals from the municipal court’s granting of Troy Duncan’s motion to dismiss a theft complaint. Duncan moved for dismissal on the ground that an almost 13-month delay between the filing of the complaint and his arrest violated his right to a speedy trial under the United States and Ohio Constitutions. The trial court granted the motion, persuaded that the state failed to demonstrate a valid reason for the delay and that the length of the delay warranted a presumption of prejudice to the defense. We conclude that, given the state’s initial diligence and the lack of evidence linking the delay to the subsequent absence of diligence, this was not an egregious case in which the length of the delay alone supports a showing of prejudice. Because Duncan did not adequately demonstrate prejudice, we reverse.
Background Facts and Procedure
On August 20, 2018, Ohio Gaming Enforcement Agent Joel Lynch filed a complaint against Duncan in the Hamilton County Municipal Court charging Duncan with a first-degree misdemeanor theft offense. According to the allegations, Duncan had stolen a speaker from a casino located in Hamilton County, Ohio, and the theft was captured on surveillance video. Agent Lynch additionally filed a warrant for Duncan’s arrest on that same date, but he lacked an in-state address. Both of the addresses Agent Lynch found for Duncan—his “last known address” obtained from the Regional Crime Information Center (“RCIC”) database, and the address Duncan listed on the rewards card application submitted to the casino—were in Kentucky.

R. David Scott, Missy Scott v. Abubakar Atiq Durrani, M.D., Center for Advanced Spine Technologies, Inc., West Chester Hospital,LLC, UC Health, LLC 
Case #C180641
Quote from Judge Bergeron's Opinion:
In this latest chapter of a series of cases concerning alleged medical malpractice, we confront issues of tolling-by-abscondment, waiver, and the effect of a permanently-revoked medical license on the medical malpractice statute of repose. We conclude that plaintiffs’ claims against Dr. Durrani are not barred by the statute of repose, and we reverse the trial court’s judgment to that extent. But we find plaintiffs’ arguments as to Center for Advanced Spine Technologies, Inc. (“CAST”) and West Chester Hospital (“WCH”) unavailing, and affirm the trial court’s dismissal of claims against those defendants

Robert Wilson v. Abubakar Atiq Durrani, M.D., Center for Advanced Spine Technologies, Inc., West Chester Hospital, LLC, et al.
Case #C180196
Quote from Judge Zayas' Opinion:This action is before us on remand from the Ohio Supreme Court. For the following reasons, we reaffirm our position recently stated in Elliot v. Durrani, 1st Dist. Hamilton No. C-180555, 2021-Ohio-3055, and hold that the repose period in R.C. 2305.113(C) may be tolled in accordance with R.C. 2305.15(A). Consequently, we find that the repose period in this case was tolled when defendantappellee Abubakar Atiq Durrani fled the country in 2013, and therefore the statute of repose does not act as a bar to plaintiff-appellant Robert Wilson’s claims against Durrani in this case. However, the repose period was not tolled in regard to Wilson’s claims against the Center for Advanced Spine Technologies, Inc., (“CAST”) and therefore those claims are barred by the statute of repose. Accordingly, we affirm the trial court’s judgment in regard to the claims against CAST, but reverse the trial court’s judgment in regard to the claims against Durrani and remand this cause to the trial court.