Cases from February 27, 2015
Welcome
back faithful readers and fellow litigators.
This week, the Sixth District Court of Appeals released seven cases for
us to digest and equate into our everyday legal lives. Let’s jump in, shall we?
Cases
this week:
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State v.
Sargent – L-13-1125
DISCLAIMER:
I was the lawyer for the Appellant in this case.
Appellant
Kenneth Sargent, II appealed his conviction for Domestic Violence out of the
Lucas County Court of Common Pleas. This
charge was a felony of the third degree, due to Appellant having been
previously convicted of Domestic Violence twice before. At Trial, the State placed into evidence
certified copies of the judgments of conviction into evidence. These were stipulated to by the
defense.
The
victim, Appellant’s mother, testified that Appellant handed her his child and
said that she needed to take care of his daughter because he “couldn’t do it
right then.” Appellant went into his
room and tossed the baby’s things into the kitchen. According to the victim, when she approached
Appellant, Appellant grabbed her by the throat and choked her so hard that she
defecated herself. The victim also
testified that he then threatened to kill her in front of her youngest son, who
also testified to this. However, the
victim’s son did not see the alleged attack.
The
victim remained in the home for 40-45 minutes before leaving and no one
testified as to seeing any marks on the victim’s neck after the incident was
reported to the police.
A
Detective for the Toledo Police testified that he investigated a prior domestic
violence incident involving Appellant in 2006, and further testified that the
victim of the 2006 incident testified that Appellant put her hands around her
neck, strangled her, and also punched her in the face.
The
jury convicted Appellant at trial.
On
Appeal, Appellant argued the following assignments of error:
1) The
trial court abused its discretion by letting the State of Ohio present evidence
of other acts during its case in chief.
2) Appellant’s
conviction fell against the manifest weight of the evidence.
3) The
trial court abused its discretion in sentencing appellant to a maximum prison
term.
As a
general rule, evidence of previous or subsequent criminal acts wholly
independent of the criminal offense are inadmissible. Ohio Evidence Rule 404(B) states: “Evidence
of other crimes, wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.”
There
are many tests involved with determining if a trial court erroneously allowed
404(B) evidence at trial. After determining
if the evidence fails to meet the test, the Court then has to determine if the
evidence was, in fact, prejudicial (AKA: not harmless). After that, the Court must then determine if
the rest of the evidence submitted, without the offending evidence, would still
lead to the conviction of the defendant.
The
Court found that the other acts evidence in this case was not necessary for the
establishment of identity and did not go to show that this was Appellant’s
“modus operandi” in committing domestic violence as the 2006 incident was not
inextricably intertwined with the crime charged. The Court also found no reason why M.O. would
be relevant. The Court found that the
Trial Court abused its discretion in admitting the evidence.
The
Court then found that the wrongfully admitted evidence also prejudiced the
defendant. The Court found that since
the only evidence of the incident was the testimony of the victim herself,
credibility of the witnesses was a key factor in the jury’s decision and the
jury could not have properly weighed credibility with this evidence, as a
reasonable juror would have judged Appellant harshly.
Finding
the error not harmless, the Court reversed Appellant’s conviction and remanded
for a new trial.
Comments: This is my case, so my
comments will be brief. This is awesome case law for 404(B) arguments
though. This case really lays out just
how far you have to be able to get to get 404(B) evidence tossed out.
I
can’t say I didn’t celebrate a little bit after this one. …though, my version of “celebrating” is
pigging out on some awesome ribs…
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State v.
Yates – L-13-1266
Appellant
Michael Yates appealed his conviction after a Bench Trial where the Trial Court
found him guilty of Aggravated Vehicular Homicide, a felony of the second
degree, and Vehicular Assault, a felony of the third degree.
Appellant
was driving hear the Hollywood Casino, exiting I-75 onto Miami Street, having
consumed “an excessive amount of oxycodone,” (the opinion’s words, not
mine). While speeding down the road,
Appellant’s car drove up onto the sidewalk, striking two people, killing one
and seriously injuring the other.
Appellant
claimed he was asleep at the wheel at the time of the incident.
Appellant
argued the following assignments of error on appeal:
1) The
trial [c]ourt’s finding that Mr. Yates acted recklessly was against the
manifest weight of the evidence, and as such, the conviction for aggravated
vehicular homicide was against the manifest weight of the evidence.
2) The
trial [c]ourt’s reliance on the fact that Mr. Yates’ operator’s license was
suspended when determining whether he acted recklessly was contrary to law.
Appellant
argued that the testimony of one of the eye witnesses could be construed in
favor of Appellant’s claim that he was asleep.
However, the Court noted that the witness simply testified that he did
not observe much movement from Appellant of the steering wheel until after the
accident. The Court also noted that
Appellant drove up over a curb, struck a fire hydrant first, then continued
driving on the sidewalk with constant acceleration prior to striking the
victims.
Appellant
also argued that the Trial Court relied only on Appellant’s suspended driver’s
license to show he acted “recklessly.”
However, the Court found that the case involved ample additional
evidence to establish recklessness regardless of the status of Appellant’s
license. Specifically, consuming a large
amount of oxycodone beforehand, speeding, hitting a fire hydrant, speeding
more, etc. Basically, even if anything
about Appellant diving on a suspended license was removed, the facts still
found Appellant guilty.
The
Court affirmed Appellant’s convictions.
Comments: Man…very sad case for
the victims. I don’t believe Appellant garners a lot of
sympathy here either.
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State v.
Wymer – L-14-1038
Appellant
Larry Wymer appealed the Trial Court’s denial of his motion to withdraw his
guilty plea to Gross Sexual Imposition.
Appellant’s guilty plea was pursuant to North Carolina v. Alford, commonly referred to as an Alford
plea.
FOR
THE NON-LAWYER: An Alford plea is a
guilty plea where you basically say “I am innocent of these charges, however,
the risks of going to trial are so great that I will agree to plead guilty to a
lesser charge.”
Appellant
argued that his attorney admitted to him that he had not conducted nearly any
investigation and had not reviewed any of the video recorded police interviews
with Appellant prior to the plea. Appellant
stated that he attempted to fire trial counsel, but counsel “refused to be
fired” and coerced him into entering the plea.
At a
hearing, Appellant basically argued that everything he said during his plea was
a lie and that he had to sign the plea agreement because his counsel gave him
no choice but to. Appellant said he was
under pressure during the plea, but that he did not tell the Trial Court that
he wanted to fire his attorney.
Appellant also argued that he lied to police detectives when he admitted
to the crime. However, Appellant
apparently admitted to the Trial Court at the hearing that he had sexual
activity with the victim, when the victim was between 8 and 16 years old.
The
Trial Court concluded that Appellant had “buyer’s remorse” after entering the
plea and denied the motion. The Trial
Court then sentenced Appellant to a term of 18 months in prison.
Appellant
argued the following assignment of error on appeal:
1) A
pre-sentence motion to withdraw a guilty plea should be freely and liberally
granted when it has a reasonable and legitimate basis. In this case, such a
basis for withdrawal was established because five of the nine relevant factors
– (1), (5), (6), (7) and (9) – weigh in favor of Wymer. Also, the trial court appears to have adjudged
Wymer’s guilt in ruling on the motion. Did the trial court abuse its discretion
when it overruled the motion?
Motions
to withdraw pleas prior to sentencing should be liberally and freely
granted. However, a defendant is not
entitled to an absolute right to withdraw his plea.
The
Court found that the Trial Court did not abuse its discretion in denying
Appellant’s motion to withdraw his plea.
Comments: Not much to say about
this one really. Appeals based on denying motion to withdraw
pleas are very difficult to get reversed.
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Appellant
Lucas County Sanitary Engineers appealed the judgment of the Trial Court that
denied Appellant’s motion for judgment on the pleadings.
Appellee
Columbia Gas sued Appellant for $1,120.40 in damages after Appellee sustained
damage to its underground lines as a result of Appellant’s negligent
excavation. Appellee’s alleged that
Appellant preformed the excavation without informing itself of the location of
the lines, or negligently excavated despite having notice of the lines.
Appellant
asserted immunity from liability and moved for a judgment on the
pleadings. The Trial Court found that
Appellant was engaged in a proprietary function when the damaged was alleged to
occur and therefore the immunity under R.C. §2744.02 did not apply.
Appellant
asserted the following issues on appeal:
1) The
complaint fails to allege an exception to the general rule of political subdivision
immunity[.]
2)
Assertions of excavations relating to a county water system fail to allege an
exception to the general rule of political subdivision immunity, since this is
not a proprietary function[.]
3)
Assertions of excavations relating to a county sewer system fail to allege an
exception to the general rule of political subdivision immunity, since this is
not a proprietary function[.]
4)
Even if the complaint alleges facts that, if true, constitute an exception to
the general rule of immunity, immunity is restored by R.C. 2744.03[.]
There
is no question that Appellant is a political subdivision and therefore entitled
to immunity. However, the dispute is
whether an exception to immunity applies or not. The exception in contention is that a political
subdivision is liable for damages for the negligent performance of acts by
their employees with respect to proprietary functions of the political
subdivision. (R.C. §2744.02(B)(2)).
Appellant
argued that exceptions must be strictly construed and there is no immunity
exception for “excavation activities.”
The Court has previously rejected such an argument. (Rosenbrook v. Lucas County Bd. of Commers.
2012-Ohio-6247).
Here,
the Court stated that Appellee’s complaint could have been better worded, however,
accepting as true all of the allegations in the complaint as true, Appellee
alleged facts which if proven demonstrate that Appellee could have been
liable. Moreover, finding no allegations
that would revive Appellant’s immunity in the complaint, the Court affirmed the
Trial Court’s decision.
Comments: Oh gee, the
County is trying to get out of being sued by waving immunity around, despite
case law that says you don’t actually have an argument here. I’m shocked…
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Franks, et
al. v. Meyers, et al. – WD-14-
035
Appellants
William and Joyce Meyers and World Eagle Captial Group appealed the Trial
Court’s granting of Appellees’ Gary and Loretta Franks motion to revive default
judgment against Appellants.
On
February 19, 1992, Appellees were awarded a default judgment against Appellants
in the amount of $27,250 plus costs ($100).
In 1996, Appellees made a payment of $6,796.14 towards the accrued
interest on the default judgment.
However no further action was taken to collect the judgment and the
judgment became dormant. In December
2013, Appellees moved to revive the judgment.
Appellants argued that it was beyond the 10 year statute of limitations
under R.C. §2325.18(A). However, Appellees
argued that the statute was amended in 2004, meaning the previous version
should be applied to this case, which provided for a 21 year statute of
limitations.
Appellants
asserted the following assignments of error:
1) The
trial court erred when it concluded that Appellee’s Motion for Revivor of
Dormant Judgment was not time-barred by 10-year statute of limitation.
2) The
trial court erred in awarding interest from the date of judgment to the
present, in violation of R.C. 2325.18(B).
3) The
trial court erred in awarding interest at 10 per cent [sic] per annum from the
date of judgment to the present instead of the annually determined rate.
4) The
trial court erred in ordering Appellants to pay the costs of the revival
action.
Finding
that the Ohio General Assembly did not specifically intend the amended statute
to be applied retroactively, the Court found Appellant’s first assignment of
error not well-taken. Finding also that
the statute enacted in 2004 that changed how interest is calculated also did
not apply retroactively for the same reason, Appellant’s second assignment of
error was not-well taken. The Court also
found that the rate of interest was correctly applied and that the Trial Court
did not abuse its discretion in awarding costs to the prevailing party.
The
Court affirmed the Trial Court’s decision in all aspects.
Comments: Why you would let a
judgment sit for so many years
is beyond me. This case appears to have
very limited usefulness as far as retroactivity of statutes goes, but otherwise
there doesn’t seem to be too much here.
I’m not even sure what the original suit was over…
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State v.
Lindenau – H-14-011
Appellant
Michelle Lindeanu appealed the Trial Court’s denial of her request to contest
the designation of her dog as a “dangerous dog.”
Appellant
wrote a letter to the Trial Court stating that on April 17, 2014, she
discovered that on April 10, her dog had been designated a “dangerous
dog.” Previously, the city of New London
had issued her a citation for violating the dangerous dog ordinance in
2013. That citation was later dismissed
in January 2014.
The
Huron County prosecutor stated that Chief Manko told him that he had personally
handed a notice of the dangerous dog designation to Appellant back in September
2013, when the citation was filed. Under
R.C. §955.222, Appellant had 10 days to file a notice with the Trial Court,
challenging the designation. Appellant
included an envelope with her letter from the prosecutor dated April, 2014,
that had been sent to her via regular mail.
The
Trial Court denied Appellant’s request as untimely on its own motion, saying
the notice was filed with the Trial Court in September and the police report
specifically mentions the service of the form in question.
Appellant
argued two assignments of error on appeal:
1) The
trial court erred in finding in its judgment that appellant’s dangerous dog
designation statute stands despite a failure of personal jurisdiction over the
appellant.
2) The
trial court abused its discretion by affirming appellant’s dangerous dog
designation by denying her a hearing based on matters not found on the record.
R.C.
§955.222(C) requires service of the notice of the designation by certified mail
or personal delivery. The Court found
that the record lacked any evidence of personal delivery, and showed no evidence
of certified mailing, as the Trial Court only referenced items that were not transmitted
in the appellate record. The Court
vacated the designation as invalid.
Comments: As short as this
opinion is, this case shows just
how valuable the record on appeal is.
Making a good record is so important.
If they really did serve Appellant by personal delivery, they did a very
poor job of documenting it and making it part of the record.
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This
is the second time this case has been on appeal.
This
case arises out of Appellant Tod Wagner’s public record request to Appellees
Huron County Board of County Commissioners and the Huron County Airport
Authority. Appellant demanded a number
of record, including tape recordings of meetings for the past 15 years, records
of easements, emails, fax logs from 2002, and “Veeder Root” reports and reports
of fuel sales. Believing Appellees were
acting too slowly, Appellant filed a complaint for a Writ of Mandamus against
Appellees.
FOR
THE NON-LAWYER: “Writ of Mandamus:” an extraordinary writ in which a court
commands an inferior court of public entity to perform a statutory or otherwise
required duty.
Both
parties filed motions for Summary Judgment and the Trial Court ruled against
Appellant and in part for Appellees. The
Trial Court held a trial on the unresolved issues and eventually ruled in favor
of Appellees.
The
Court, however, reversed the Trial Court, finding that the Trial Court had erroneously
denied Appellant’s motion for Summary Judgment where the record clearly
demonstrated that Appellants wrongfully destroyed the Veeder Root reports. The Court remanded specifically
for the Trial
Court to: “(1) determine the extent of Wagner’s damages, including the
appropriate amount of attorney’s fees, as to his claims regarding the Veeder
Root reports; and (2) conduct further proceedings with respect to Wagner’s
claims regarding the Airport Authority audio tapes consistent with our
determination that Wagner did, in fact, request the records from the
appropriate entity.”
On
remand, Appellant explained that the reason for all of this was that he wanted
the Huron County Airport to remain in operation and in his opinion, some were
attempting to close the airport by claiming it was not operating at a
profit. Specifically, Appellant argued
that any revenue shortfalls were attributed to poor monitoring of fuel
inventories, and that he had personally witnessed Airport Authority board
members stealing fuel on “several occasions.”
(…okay,
this just got interesting.)
Appellant
argued that he was entitled to damages of just under $3 million dollars in
damages, based on the number of days for which no records were provided
multiplied by the number of reports per day.
Under the version of R.C. §149.351 active at the time the suit was
filed, Appellant would be entitled to $1,000 in damages per violation. An attorney testified that Appellant
and his attorney
(not the witness) had a contingency fee agreement for 40% of any award Appellant
received. He testified that this was
normal and fair and reasonable.
Appellees
also called an attorney who testified that the hourly rate of $175 to $200 an
hour was a reasonable rate in the area.
The
Trial Court found that Appellant was not entitled to damages as he was not “aggrieved”
by Appellee’s failure to produce the requested documents because he was merely “feigning
an intent to access public records.” The
Trial Court also held that the audio tapes Appellant wanted from the Airport
Authority were not public records because the Airport Authority does not tape
each meeting, the recordings were used as a convenience to the preparer of the
written meeting minutes, not kept and relied upon by the Airport Authority.”
Appellant
asserted the following assignments of errors:
1) The
trial court erred and/or committed reversible error when it failed to award
damages for the wrongfully destroyed Veeder Root Reports.
2) The
trial court erred and/or committed reversible error when it failed to award
damages to the Appellant for the Wrongfully Destroyed Tapes Public Records.
3) The
trial court erred and/or committed reversible error when it failed to award
Attorney [sic] fees to Appellant.
The
former version of R.C. §149.351(B) that was in effect when this suit was filed
specifically required that a person be “aggrieved” by the removal or
destruction of public records to recover damages. The Court, in the past, has held that a “party
is only considered to be aggrieved if he or she made a request with the goal of
actually accessing the public records.”
The
Trial Court found that Appellant was not aggrieved because he 1) hired an
attorney to a contingency fee agreement before making 19 public record requests
from several agencies, 2) after receiving several years of Veeder Root reports,
Appellant never compared them to the other records of fuel sales to confirm
that fuel had been stolen, and 3) Appellant’s spouse was a twelve year
member of the Airport Authority and Appellant was a plane owner and a tenant of
the airport.
Appellant
argued that the Court in the previous case held that Appellant was an aggrieved
party and that issue was not before the Trial Court. The Court disagreed, stating that all it had
found was that records had been improperly destroyed and that Appellant had
actually requested the Airport Authority recordings. After reviewing the record on appeal, the
Court found that it could not find that the Trial Court’s decision was against
the manifest weight of the evidence and affirmed the Trial Court.
Comments:
I feel like there’s something more interesting about this case than what’s in
the decision. Or, it might be exactly
what it appears from the face of this opinion; someone trying to get rich off
of a technicality, and failing at doing so.
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