Cases from March 20, 2015
Welcome
back readers and fellow litigators!
After last week’s marathon of a blog, I’m pumped up and ready to dig
into all of the cases the Ohio Sixth District Court of Appeals decided this
week! …
Okay, so there’s only four cases, and only one of which is a criminal
case…well, good, I needed a short post I guess.
Cases
this week:
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State v.
McIntire – H-13-018
Appellant
Norvelle McIntire appealed after being convicted by a jury of Rape, Gross
Sexual Imposition, Importuning, Attempted Gross Sexual Imposition, and Public
Indecency in July of 2013.
By way
of background, the accusations from the State were for three incidents; 1)
touching the buttocks of two girls (one 12, one 14), 2) exposing himself and
trying to force the 14 year old to touch his penis, and 3) pinning the 12 year
old down and digitally penetrating her.
Specifically,
the third incident happened, but only months later did the child come forward
and told her cousin what had happened.
That information reached her parents and they took her to the
hospital. It was too late to find any
physical evidence, but the hospital contacted the police anyway.
Appellant
argued the following assignments of error:
1) The
trial court abused its discretion when it allowed Detective Fulton to provide
inadmissable [sic] testimony regarding generalities about sex abuse victims[.]
2) The
trial court erred when it allowed the state of Ohio to comment on appellant’s
right to invoke counsel in violation of the fifth and sixth amendments to the
federal constitution made applicable to the states by the fourteenth[.]
3) The
trial court erred when it failed to grant the appellant’s motion for acquittal
as it relates to count three in the indictment[.]
So,
the first argument is that the Trial Court erred in allowed Sergeant Fulton to
testify about why it’s not uncommon for victims of sexual assault, specifically
child victims, to delay in reporting the crimes committed against them. Appellant argued that
allowing this testimony,
the State was allowed to bolster the victim’s credibility and present “expert”
testimony without declaring Sergeant Fulton to be an expert.
The
Court, however, has found numerous times that a police officer with his
experience and training, had the specialized knowledge required to testify
concerning the incidence of delayed reporting by sexual abuse victims, even
where the Trial Court had not specifically found the officer to be an
“expert.” The Court reached the same conclusion
in this case.
Generally,
a witness bay not provide opinion testimony regarding the truth of a witness’s
statement or testimony, as that is the job of the trier of fact (aka: the jury,
or the judge in a bench trial). However,
the Court found that Sergeant Fulton’s testimony was limited to his
observations of the victim’s demeanor, his reasons for believing why she was
initially holding back information, and that it wasn’t uncommon for that to
happen. Since he made no reference to
his opinion if the victim was being truthful or not, the Court found that this
was not error, and found Appellant’s first assignment of error not well-taken.
During
a police interview, it was revealed to Appellant that he was going to be
indicted for rape. Appellant laughed and
then said he would answer no more questions without his lawyer present. This was testified to at
trial over Appellant’s
objection.
Prosecutors
are not allowed to comment on post-arrest silence. However, when a prosecutor DOES improperly
reference said silence, the reviewing court must look to whether the comment
was extensive, whether an inference of guilt from silence is stressed to the
jury as a basis of conviction, and whether there is evidence that could have
supported acquittal. If the reference is
brief, isolated, and followed by an instruction to the jury to disregard the statement,
the error might not be reversible.
The
State tried to argue that it was Appellant who did not remain silent after he
was read his rights. The Court, however,
was not convinced that a laugh provided the State with an acceptable reason for
commenting of Appellant’s invocation of his right to silence. However, despite finding that, the
Court did
not believe this was reversible error.
There
was a slightly interesting bit about the date of the incident. The indictment stated that one of
the
offences happened “on” August 27, 2012, instead of the normal “on or about,”
and the evidence showed that the offense happened earlier than that, but the
time and date of an offense is ordinarily not a required element of an
indictment, and is not necessary for the State to prove with specificity.
The
Court affirmed Appellant’s convictions.
Comments: Seems like a
case with some very difficult
facts. These kind of criminal cases are
always difficult to read through.
Without knowing what is on the record though, it’s hard to say much
about this kind of case.
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Jo.W. v.
Je.W. – L-14-1095
Private
custody case, Appellee father vs. Appellant mother.
Appellant
argued the following assignments of error:
1) The
magistrate failed to make the necessary finding as to whether the harm likely to
be caused by a change of environment is outweighed by the advantages of the
change of environment to the child.
2) The
magistrate’s finding that a change of custody was in the best interest of the
child was against the manifest weight of the evidence.
3) The
trial court erred in overruling mother’s objections to magistrate’s decision by
employing the wrong standard of review.
Result:
Affirmed
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Mortgage
case
Appellants
Pro Se argued the following assignment of error:
2)
“The Court finds that the plaintiff has filed a motion for Summary Judgment
supported by a Memorandum and Affidavit. Upon consideration thereof, the Court
finds no genuine issue as to any material fact and the plaintiff is entitled to
a Judgment and Decree in Foreclosure as a matter of law.
This
is in Error, There was no Notice served upon Appellants for Hearing on the
Motion for summary judgment. This same motion has no evidence or affidavit
attached to support plaintiff’s assertions Pursuant to Civil Rule 56(C).
Appellee’s lack Standing to sue as they have no competent fact witness and were
not holders of the Note at time of filing Complaint, Trial court abused its
discretion and was without subject matter jurisdiction to rule in favor of
Appellee’s (sic).”
The “2”
is not a typo. They originally stated
two assignments of error, however, the first one was struck because Appellants filed
the appeal on behalf of other people, constituting the unauthorized practice of
law, and dismissed it from the case.
Result:
Affirmed
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Elizabeth
Papps, et al. v. Chrisoula Karras, etc. – L-14-
1246
Civil
case involving trusts
Assignments
of error:
1) The
trial court improperly ruled that plaintiff lacked standing to bring an action
of breach of fiduciary duty against defendant.
Result:
Affirmed
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Short
week. See you next time!
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