Cases from February 20, 2015
Welcome
back, faithful readers and litigators.
The Sixth District Court of Appeals released five decisions on the 20th
of February, 2015, meaning this blog can’t possibly be that difficult to write
up! Let’s get started.
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State
v. Jones – L-13-1193
…this
opinion is 29 pages long…oy. Alright,
let’s see…
Appellant
Antwaine Jones appealed his convictions from the Lucas County Court of Common
Pleas after being found guilty by a jury of Aggravated Murder, Murder, two
counts of Attempt to Commit Murder, four counts of Felonious Assault and one
count of Improper Discharge of a Gun into a Habitation, each count with a
firearm specification.
This
is the Moody Manor Shooting that occurred in 2012 for those of you in the
area. If you don’t know: http://www.toledonewsnow.com/story/22657163/moody-manor-murder-trial-history
has a really good rundown of the facts as far as the media knew them in June
2013 when the trial started. The basics
are that, one night in an apartment, a one-year old and a two-year old were
sleeping on the floor in front of the air conditioning unit when they were
awoken by gunfire. The one-year old sat
up and was shot in the head while the other was shot in the abdomen. The children were rushed to the hospital, but
only the two-year old survived.
Over
the course of the investigation, three people were originally charged with
Obstruction of Justice before being charged with the shooting itself. One of the men, James Moore, took a plea deal
and testified against the other two, Appellant and Keshawn Jennings. The two men were tried together.
The
shooting? Gang-related. Except that they shot up the wrong apartment…
Upon
being found guilty of everything, Appellant was sentenced to 30 years to life
for the Aggravated Murder, 11 years for the Attempted Murder, and 8 years for
the Felonious Assault, and one year on each for the firearms specifications,
(one year instead of three years because the jury verdict forms accidently
listed the language for the one year specification instead of the three year
spec. I’ve seen this twice now…). The Trial Court fashioned a sentence that
gave Appellant a life sentence with parole eligibility after 40 years. The Trial Court also ordered Appellant to pay
all or part of the applicable costs of supervision, confinement, assigned
counsel, and prosecution.
This
is an Anders brief. …after a jury trial. In this case, however, Appellant filed his
own pro se brief following the filing of the Anders brief by appointed counsel.
In his brief, Appellant raised twelve assignments of error, some of
which were similar to the ones set forth in the Anders brief. Therefore the
Court only addressed those twelve assignments of error.
Appellant
asserted the following assignments of error:
1) The
trial court erred to the prejudice of Mr. Jones by failing to excuse a sleeping
juror in violation of his right to a jury and his right to due process of law
as guaranteed under the fifth, sixth, and fourteenth amendments to the united
states constitution.
2) Trial
counsel rendered ineffective assistance of counsel to Mr. Jones by failing to
object to the sleeping juror’s presence on the jury in violation of his right
to counsel and his due process rights under the fifth, sixth, and fourteenth
amendments to the united states constitution and the applicable portions of the
Ohio constitution.
3) The
trial court erred to the prejudice of Mr. Jones when it ordered him to pay
unspecified costs, including court appointed fees, without first determining
the ability to pay those costs.
4) Appellant’s
convictions were based upon insufficient evidence presented at trial.
5) Appellant
Jones were [sic] entitled to a Rule 29 motion that was improperly overruled
because the State has not shown the transferred intent that is required, and
because appellant was arrested without probable cause or warrant for
indictment.
6) Appellant’s
convictions were against the manifest weight of the evidence.
7) The
trial court erred to the prejudice of Mr. Jones by ordering consecutive
sentences and by failing to merge all counts as guaranteed by the fifth, sixth,
and fourteenth amendments to the United States constitution and the applicable
portions of the Ohio constitution.
8) The
appellant was denied due process of law and a fair trial due to prosecutorial
misconduct in violation of article 1, section 2, 10, and 16 of the Ohio
constitution: 5th, 6th, and 14th amendments U.S. Constitution.
9) The
trial court errored [sic] to the prejudice of appellant by admitting perjured
testimony government witness’ [sic] and star witness J.T. Moore in violation of
article 1, 2, 10, and 16 of the Ohio constitution: 6th, and 14th amendments, U.S.
constitution.
10) The
trial court erred to the prejudice of Mr. Jones when it denied a defense motion
to have a complete copy of the prosecutor’s file turned over to the court and
sealed for appellate review in violation of his right to due process as
guaranteed by the fifth, sixth, and fourteenth amendments to the United States
constitution and the applicable portions of the Ohio constitution.
11) Cumulative
errors deprive a criminal defendant and criminal appellant of a fair trial in
violation of his rights under the fifth, sixth, and fourteenth amendments to
the United States constitution and the corresponding provisions of the Ohio
constitution.
12) The
trial court erred in failing to grant appellant’s motion to severance [sic], change
of venue and ineffective assistance of counsel.
I have
no idea who was giving this advice, but at least he federalized his arguments…
So,
let’s start with the important issue, #3: the assessment of costs. Appellant was ordered to pay the costs of confinement
and Court-Appointed Counsel, finding that Appellant had or could be expected to
have the ability to pay. The Court
found, however, that Appellant was 19 at the time of sentencing and was given a
life sentence with parole eligibility in 40 years. The Court found that this fact alone
prevented such a finding.
The
Court affirmed everything else.
Of
interest, a juror was caught dosing off during the trial. There was a hearing with said juror where the
Trial Court both admonished the juror and asked if he could continue. After the hearing, Trial Counsel for
Appellant did not enter an objection to the juror. Appellant argued that the time the juror was
asleep was a “centerpiece of the State’s case in chief.” As it turns out, it occurred during testimony
of the surveillance system of the apartment complex, something multiple
witnesses testified to in a case that produced 1,600 pages of transcript. The court found that Appellant failed to
demonstrate any plain error in keeping the juror.
Moore’s
testimony really cinched the case for the State is appears. Moore identified the three of them on the
security cameras and testified that he was the driver of their van and he knew
Appellant and Jennings were going to apartment 2217…except that they went to
2225. Moore testified that both
Appellant and Jennings had guns.
The
prosecutorial misconduct was that the State played a video of a recorded
statement that had been previously suppressed for failure of the police to
advise Jennings of his Miranda
rights. According to the State’s brief,
neither counsel nor the Trial Court “noticed” that the recorded statement
contained the pre-Miranda statements
until the recording had been played for five minutes. The Court found that the statement from
Jennings were about a pervious shooting and previous gang related activities,
and that, since the Trial Court instructed the jury to disregard the
statements, any misconduct by the prosecutor was not prejudicial to Appellant.
Comments: I have a number of things to talk about here. First, an Anders
brief on a jury trial just make me very sad. I understand that, looking at the decision
there was not much there, but Appellant got the payment of his costs reversed,
so there clearly was something. Also,
I’ve always felt in a trial that you can take Defense Counsel’s closing
argument and make a manifest weight of the evidence argument. Anders
isn’t supposed to be “I can’t win,” it’s supposed to be “There is literally
nothing to argue in this case.”
Obviously, I didn’t read the transcripts, and I’m not telling anyone how
to do their business, but it’s just easier to make some kind of argument rather
than forcing the Court to look through the record
I
really, REALLY dislike the idea that an order by the judge for a jury to
disregard suppressed evidence is perfectly okay. Also, that the State “accidently” played
suppressed statements is rather comical in that it was either done on purpose,
or was very sloppy trial work. How one
gets a DVD ready and plays it without realizing those statements were
suppressed is beyond me. Perhaps the
prosecutor changed in the middle of the case, but it just is rather bad form
for that to be played. Nevertheless, I’m
surprised the Trial Court didn’t focus more on the fact that they weren’t
statements made by Appellant, but Jennings, meaning Appellant’s rights weren’t
violated by the statements. Still,
either way you cut it, the statements didn’t prejudice Appellant, regardless of
how I feel about how it came to be or the “remedy.”
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Bank
of America, N.A., Successor by Merger to BAC Home Loans Servicing, L.P., fka
Countrywide Home L.P. v. Duran et al. – L-14-1031
…excuse
me while I take a break after writing that caption out.
Okay,
so this is a civil case. Hopefully this
isn’t too--oh crap it’s 29 pages long…
Appellant
Duran appeals the Trial Court’s granting of Summary Judgment for Appellee Bank
of America (…N.A., Successor by Merger to BAC Home blah blah blah), and also
the Trial Court’s denial of Appellant’s motions for reconsideration and to
vacate judgment.
Appellee
filed a complaint against Appellant, claiming that Appellee was the holder of a
note and that Appellant failed to meet the terms of that note. Appellant allegedly owed $174,435.26 plus
interest and late charges on the note.
Also filed with the complaint was an affidavit from a lawyer who
represents Appellee that in his professional opinion, Appellee was the holder
of the note and was entitled to enforce it under R.C. §1303.31. The note was indorsed in blank (I have no
idea what this means, so I looked here: http://en.wikipedia.org/wiki/Blank_endorsement. I still don’t know…), by the president of the
original lender, Taylor, Bean, and Whitaker Mortgage Corp. The mortgage listed Mortgage Electronic
Registration Systems, Inc. as the mortgagee.
The assignment of the mortgage provided that MERS, acting as nominee for
Tylor Bean, assigned the note to Appellee, and was signed by Serena Harman, an
assistant VP of MERS. This was recorded
in Lucas County on March 31, 2010.
Appellant
answered the complaint, stating that the property in question was the subject
of a federal lawsuit concerning mortgage fraud and Appellant had filed an
action in Lucas County against the attorney in the affidavit for filing a
frivolous lawsuit. Appellee moved for
Summary Judgment. During most of this,
apparently, Appellant represented herself pro se.
This
case is a Civil Procedure Geek’s dream.
This case is mostly based on Discovery issues and really a lot of things
that aren’t exceptionally exciting to read through. It isn’t made any easier by Appellant’s pro
se filings. Of note, after losing the
motion, Appellant got an attorney and that attorney filed a motion to vacate
the judgment, which the Trial Court denied.
Appellant
argued the following assignments of error:
1) The
trial court erred in granting summary judgment to Bank of America, N.A.
(“BANA”) on its foreclosure complaint as BANA failed to prove it had standing
to bring the action and failed to submit admissible Rule 56 evidence
establishing performance of conditions precedent.
2) The
trial court abused its discretion in granting summary judgment without first
giving Duran an opportunity to complete discovery.
3) The
trial court erred in finding MERS had the capacity to transfer either the note
or the mortgage during the pendency of its principal’s bankruptcy absent proof
that the transfer was authorized by the bankruptcy trustee.
4) The
trial court erred in denying defendant’s motion to vacate as plaintiff failed
to affirmatively establish its standing to enforce the note and mortgage which
rendered the judgment of the trial court void for lack of subject matter
jurisdiction.
Addressing
the assignments out of order, as to the discovery issues, Appellant did file
for discovery, but not on an order of the Court of for use of evidence or for
consideration of a motion as required by the Civil Rules. Appellant argued that Appellee should have
been required to file its discovery responses with the Trial Court, but the
Court stated that it would not hold that Appellant’s lack of adherence to the
Civil Rules obligated the Trial Court to require Appellee to file its
responses.
The
Court also found that Appellee had standing to enforce the note since it was
indorsed in blank and Appellee had possession.
Appellant apparently tried to argue that an affidavit by a witness for
Appellee stated that Appellee “has” the note as being insufficient to prove
that Appellee “had” the note at the time they file the lawsuit…since they
attached a copy to the lawsuit…
Oddly,
the Court stated that it could not conclude that Appellee was the successor in
interest to the mortgage through merger.
However, the Court also stated that it has held in the past that a
transfer of a note secured by a mortgage also acts as an equitable assignment
of the mortgage. The Court found that
the note was transferred, meaning the mortgage was enforceable by Appellee,
despite the ambiguity.
All of
that means that Appellee had standing to the mortgage.
The
Court found no genuine issue of material fact was present and that the Trial
Court did not err in issuing Summary Judgment for Appellee.
Finally,
the Court found that Appellant’s motion to vacate judgment under Civ. R. 60
was…basically meritless and did not provide any evidence that Appellant had a
meritorious defense.
Comments: I took French in high school and college. I don’t remember much about it, but I DO
remember that the word “mort” meant death…and that really describes how I feel
about mortgage cases...
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Appellant
John Phillips appealed the judgment of the Lucas County Court of Common Pleas,
sentencing him to 11 years following a jury finding of guilty to burglary and
robbery.
Appellant
was accused of walking into a home through the unlocked door of an elderly
gentleman’s home without permission.
Upon entering, Appellant shoved the elderly man down and demanded
money. Thereafter, Appellant searched
the homeowner’s pockets and pulled out $250, and then ran out the door and down
the alley adjacent to his home.
The
police were called and the Victim informed the police that the man who robbed
him was wearing a gray hooded sweatshirt, camouflage shorts, and green
shoes…although the Victim testified that Appellant was wearing brown pants and
he never told the police they were camouflage.
The Victim then gave the police an address where he suspected the suspect
lived.
Police
preceded to the address, meeting the resident, Holly Brown. Brown consented to a search of the home, and
inside, the police found Appellant…in the basement…under a pile of clothes. They did not, however, find the $250.
During
a police interview, Appellant denied it was him, saying a guy named “Rob” did
it. However, police could not find
anyone matching the description given to them named “Rob.” Upon further questioning, Appellant admitted
he had entered the Victim’s home without permission to do so and demanded money
from the Victim. This went to Jury
Trial. …I’m as shocked as you are…
Appellant
asserted two assignments of errors on appeal:
1) The
decision of the trial court was insufficient and against the manifest weight of
the evidence.
2) The
court abused its discretion by sentencing appellant to two consecutive maximum
sentences in violation of R.C. §2929.14(B)(2)(c).
The
second assignment of error was actually an argument of merger. This case reaffirms the position that breaking
into someone’s house is Burglary, and then using force to take something from
someone in the house is a separate instance of Robbery.
Comments:
One of those cases where you don’t have much to go on, it would appear. Especially with the admission. (note: if you
did a crime, DON’T TALK TO THE POLICE. Actually, in general, don’t talk to the
police…they have a job and they are NOT out to help you if you give them
evidence that you committed a crime).
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Oh thank
goodness, only four pages…
Appellant
Tony Elwood Connin filed a motion to “Vacate Void Sentences” in the Lucas
County Court of Common Pleas. In 2011,
Appellant entered guilty pleas to two counts of rape and one count of unlawful
sexual conduct with a minor. Appellant
was sentenced to a total of 20 years.
Appellant appealed his sentence, which the Court affirmed in 2012. The Supreme Court of Ohio declined to review
Appellant’s direct appeal.
Appellant
filed his motion in February 2013. The
Trial Court denied Appellant’s motion saying the motion was filed out of time
and that it did not have jurisdiction to reconsider its sentence after the
Court of Appeals affirmed it.
Appellant,
acting Pro Se, asserted the following assignment of error:
1) The sentence imposed against the appellant is
void because the trial court never had jurisdiction to impose consecutive
sentences upon the appellant pursuant to ORC 5145.01. Thereby violating the
appellant’s rights pursuant to the Ohio Constitution Art. IV, Sect. 4, Art. I
section 10 and 16 and the United States Constitution Amds 5, 6 and 14. [sic.]
…Do I
need to say much more? The Court sure
didn’t…
Okay,
so here’s something: a Post-Conviction Relief motion must be file 180 days
after the trial transcripts are filed in the Court of Appeals, OR after the
time to appeal expires without an appeal being taken. Appellant’s motion is a Post-Conviction
Relief motion that was filed late. There
are circumstances in which you can file late.
Appellant met exactly none of them.
Comments:
Pro Se cases…people try very hard to get out of things they pled guilty to…
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Appellant
Tonya Turner appealed a judgment from the Sandusky Court of Common Pleas,
granting Summary Judgment to Appellee, Cathedral Ministries.
In
July 2011, Appellant was at The Church on 53 (an entity associated with
Appellee) for a free religious class offered by The Church. Appellant dropped her six-year old child off
at the child care room on one side of the building and proceeded towards the
other side where the class was being held.
As Appellant approached the classroom, she tripped on a two-by-four that
was stacked along a wall among other two-by-four of various lengths and was
protruding into the walkway. Appellant
caught her left foot and fell, fracturing her right foot. Appellant had to undergo multiple surgeries
and hospitalizations to treat both the fracture and resulting complications,
including a staph infection and MRSA.
Appellant also alleged chronic pain which has prevented her from working
and performing other daily activities.
The
two-by-fours were building materials being used in the construction of the
classroom, and the two-by-fours were put there to be “out of the way.” The two-by-fours were difficult to discern
from the floor tile due to them being of similar color. The Pastor who placed the boards there knew
they exceeded the length of the wall and would protrude into the walkway. The Pastor
conceded that he had concerns, but that the boards were in an area that was so
far out of the normal traffic pattern that he disregarded it as “not really
going to be an issue.”
Appellant
sued, alleging that Appellee was negligent to a business invitee. Appellee argued that Appellant was a licensee
of the Church, making it only liable for willful or wanton conduct.
The
Trial Court granted summary judgment for Appellee, finding that Appellant was a
licensee.
Appellant
appealed, arguing four assignments of error:
1) The
Trial Court Erred In Granting Summary Judgment In Favor Of The
Defendant-Appellee Church On The Basis That Plaintiff/Appellant Was A Licensee,
Not An Invitee, And Consequently Not Owed A Duty Of Ordinary Care.
2) The
Trial Court Erred In Granting Summary Judgment In Favor Of The
Defendant-Appellee Church. The Church Owed Plaintiff Member A Duty To Exercise
Ordinary Care. A Member Of A Church And/Or Attendee Of A Religious Study Class
Is Owed A Duty To Exercise Ordinary Care By The Church Whether An Invitee Or A
Guest.
3) The
Trial Court Erred In Granting Summary Judgment In Favor Of The
Defendant-Appellee Church With Respect To Its Employee’s (Pastor Matthew
Coutcher) Negligence In His Conduct In Performing And/Or Supervising
Construction Related Activities On Behalf Of The Church.
4) The
Trial Court Erred In Granting Summary Judgment In Favor Of The
Defendant-Appellee Church Because A Question Of Fact Existed As To Whether The Church, Through The Conduct
Of Its Pastor, Failed To Exercise Reasonable Care In The Clean-Up And/Or
Supervision Of The Construction Activities Being Performed By Him.
(A
note to all attorneys everywhere: DON’T WRITE ANY SENTENCE EVER WITH TITLE
CASING. If you’re going to make your
assignments of error full or even run-on sentences, Don’t Write Them Like This
Because This Is Annoying To Read).
This
entire case falls on whether Appellant was an invitee or a licensee. People fall into one of three categories when
they enter the property of another: invitee, licensee, or trespasser. Business invitees are persons who come onto
the premise of another by invitation, express or implied, for some purpose
which is beneficial to the owner. A
person who enters the property of another by permission or acquiescence for
their own pleasure or benefit is a licensee.
The
Court found that, despite the class being offered for no charge, the Church had
actively invited people in, required them to register, and expected attendance
once they registered. The Church sought
to increase its membership and congregation using the free courses as one way
to accomplish its goal. The Court
stated: “We think it unjust to allow the church to invite and encourage
participation in its classes and services, yet avoid responsibility for
exercising ordinary care and maintaining the premises in a safe condition to
protect those that accept its invitation.”
The
Court reversed the Trial Court on assignment of error #1, not addressing the
others as moot.
Comments: Being involved
with a Church myself, this hits a little close to home. Honestly though, I think this came out
correctly. We don’t know what the result
of the lawsuit will be, only that the Church does not get a technical win
before the case gets to its merits.
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That’s
all for this week. Hope to see you next
time! If I…don’t go insane from writing
briefs…
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