Friday First District Roundup: Sufficiency of evidence, Legal Custody, Sentencing, Tort Immunity, Attorney’s Fees, Due Process, Plain Error

Each Friday, we highlight decisions of the First District Court of Appeals in the past week. For question about these cases, contact Vanessa Seeger.

State of Ohio v. David Cruzbaez
Case #C180263
2019 WL 2563808

SUMMARY FROM THE COURT

Defendant’s aggravated-menacing conviction was supported by sufficient evidence and was not against the manifest weight of the evidence where the evidence showed that defendant yelled at the victim and threatened to shoot her and her baby and the victim testified that she took the threat seriously and had been scared, as evidenced by her leaving the house with her child in the middle of the night and calling the police.

JUDGMENT:       AFFIRMED

 

In re: F.B.D.
Case #   C180356
2019 WL 2613332

SUMMARY FROM THE COURT

Where the trial court’s determination that a grant of legal custody to mother was in the child’s best interest was supported by competent and credible evidence, the court did not abuse its discretion in awarding mother legal custody.

JUDGMENT:                       AFFIRMED

 

State of Ohio v. Kyle Kimbrough
Case # C180295
2019 WL 2613294

SUMMARY FROM THE COURT

Where defendant’s sentence was within the applicable range, the trial court considered R.C. 2929.11 and 2929.12, the sentence was not clearly and convincingly contrary to law, and the sentence was not clearly and convincingly unsupported by the record, the sentence will be affirmed even though the parties and the victim were expecting a different result.

JUDGMENT:                       AFFIRMED

Daniel P. Buchenroth v. City of Cincinnati
Case # C180289
2019 WL 2613293

SUMMARY FROM THE COURT

Because the city had tort immunity for crosswalk signs and lines that it provided at a midblock crosswalk, the trial court erred when it failed to grant the city’s Civ.R. 12(C) motion for judgment on the pleadings.

Traffic-control devices such as crosswalk signs and lines are not mandated at midblock crosswalks by R.C. 4511.65(A) or the Ohio Manual of Uniform Traffic Control Devices, and so are not part of a public road and do not fall within the public-roads exception to political subdivision tort immunity.

JUDGMENT:                       REVERSED AND CAUSE REMANDED

 

217 Williams, LLC v. Stewart Lee Worthen, John H. Forg
Case # C180101
2019 WL 2613331

SUMMARY FROM THE COURT

The trial court did not err in awarding attorney fees to plaintiff landlord against defendant tenant’s attorney under R.C. 2323.51(A)(2)(a)(i) in an eviction action, where the court’s finding that the attorney had engaged in frivolous conduct by protracting the proceedings for the obvious purpose of unnecessarily delaying defendant’s eviction was supported by the facts and the law, as the record demonstrated that the objections the attorney had filed to a magistrate’s order setting a bond amount lacked any basis in law and were not filed in accordance with the local rules, and the disability-based discrimination claim the attorney filed against plaintiff lacked an evidentiary basis, and that this conduct was undertaken for the stated purpose of delaying the eviction.

JUDGMENT:       AFFIRMED

 

In re: A.S.
Case #   C180046
2019 WL 2613458

SUMMARY FROM THE COURT

The juvenile court violated the juvenile’s due-process rights by revoking the juvenile’s probation in a delinquency case and imposing a suspended commitment to the Department of Youth Services without following Juv.R. 29 and 35: the state never alleged a probation violation in the case; the juvenile court never held a hearing to determine whether the juvenile violated a probation condition; and the juvenile court did not determine whether the notice requirements had been met or waived, whether the juvenile admitted to the probation violation, and the possible consequences of an admission.

When accepting the juvenile’s admission to a probation violation in a delinquency case, the juvenile court had no duty to notify the juvenile that a potential consequence of an admission to the probation violation was revocation of probation in a separate delinquency case, because the state never alleged a probation violation in the separate case as required by Juv.R. 35, and therefore, the juvenile court’s continuing jurisdiction in the separate case had not been invoked at the time of the probation-revocation hearing.

The trial court erred in denying the juvenile’s request under R.C. 2152.18(B) to credit time spent at Abraxas Youth Center, a residential behavioral-health facility, toward his Department of Youth Services commitment: the measures used at Abraxas to ensure the safety of the surrounding community, and the staff control over the juveniles’ personal liberties at Abraxas are not distinguishable from those in In re T.W., 2016-Ohio-3131, 66 N.E.3d 93 (1st Dist.), where this court held that the juvenile’s time spent in the Hillcrest School constituted confinement.  [But see DISSENT:  In In re T.W., this court did not apply an appropriate test for confinement, and even if that test were applied, the juvenile’s time at Abraxas did not constitute confinement as contemplated by R.C. 2152.18(B).]

JUDGMENT:       AFFIRMED IN PART, REVERSED IN PART, AND CAUSE REMANDED IN C-180045; VACATED IN C-180046

State of Ohio v. Luther Tolbert
Case # C170711
2019 WL 2613437

SUMMARY FROM THE COURT

The trial court did not commit plain error in admitting into evidence jail phone calls where the record reflects that defense counsel agreed to their admission.

The trial court did not commit plain error by admitting into evidence arguably hearsay statements where the case was tried to the court and the record does not support the conclusion that the court relied on the statements.

Defendant was not prejudiced by his counsel’s failure to object to the testimony of a police officer, which summarized the content of recorded jail telephone conversations, where the trial court actually listened to the recordings and read the transcripts of the phone calls.

The trial court had no authority to enter a no-contact-with-the-victims order as part of defendant’s sentence where defendant was sentenced to prison:  a no-contact order is a condition of community control and may not be imposed where defendant was sentenced to prison.

The trial court’s sentencing entry does not reflect the merger of count two into count one as the court pronounced at the sentencing hearing, and therefore, the cause must be remanded for the trial court to correct the judgment entry to reflect that merger.

JUDGMENT:       AFFIRMED IN PART, VACATED IN PART, AND CAUSE REMANDED

 

There were several cases considered on the accelerated calendar and judgments were entered but no opinions issued. They are:

State of Ohio v Dwayne Willis

Dominick Donisi v. Angela Donisi

State of Ohio v. Lawrence Dangerfield