Subject: Prenuptial Agreements     Citation: 2007-Ohio-5862
Holding: "Strong and unmistakable language in a prenuptial agreement is necessary to deprive a surviving spouse, and particularly a widow, of the special benefits conferred by statute, we need the plain intention of the parties to accomplish that object."

Good language: This Agreement is effective during the lifetime of each of the parties and shall survive the death of each. In the event that any portion hereof is found to be contrary to law by a court of competent jurisdiction, then the other provisions hereof shall nevertheless remain in full force and effect and, as to the portions deemed contrary to law, such language and provisions shall be substituted therefor as shall effectuate the parties' intentions as expressed herein."


Subject:
Child’s testimony in court     Citation: 2007-Ohio-5637

Holding: To determine whether a child declarant's statement made in the course of police interrogation is testimonial or nontestimonial, courts should apply the primary-purpose test: "Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution."

Good language:
The statements made to the deputy sheriff were testimonial because the circumstances objectively indicate that no ongoing emergency existed and that the primary purpose of the police interrogation was to establish past events potentially relevant to a later criminal prosecution. Therefore, the police could not gain a conviction without the defendant having the opportunity to cross-examine the witness. [His own 3-year old son; this was a murder conviction with was overturned.]
Subject Citation


Subject:
Modification of Parenting Plan     Citation: 2007-Ohio-5589

Holding: A modification of the designation of residential parent and legal custodian of a child requires a determination that a "change in circumstances" has occurred, as well as a finding that the modification is in the best interest of the child.

Good language:
If a shared-parenting order is issued and the order is silent regarding the residential parent and legal custodian status, and the context does not clearly require otherwise, then each parent is a residential parent and legal custodian of the child.


Subject:
Parol Evidence     Citation: 2007-Ohio-3823

Holding: The parties cannot rely on prior statements or agreements to supplement the written agreement without varying its terms." Accordingly, the trial court held that parol evidence cannot be used to contradict the language of the contract.

Good language:
The parol evidence rule states that "absent fraud, mistake or other invalidating cause, the parties' final written integration of their agreement may not be varied, contradicted or supplemented by evidence of prior or contemporaneous oral agreements, or prior written agreements."


Subject:
Usury Laws     Citation: 2007-Ohio-5951

Holding: Criminal usury 'means illegally charging, taking, or receiving any money or other property as interest on an extension of credit at a rate exceeding twenty-five per cent per annum or equivalent rate for a longer or shorter period, unless either: (1) The rate of interest is otherwise authorized by law; (2) The creditor and the debtor, or all the creditors and all the debtors are members of the same immediate family." R.C. 2905.21(H).

Good language:
The testimony supplied by Wolfe and Luccio never established that White charged interest in excess of twenty-five percent for a specified term, as is required to establish the crime of criminal usury.



Subject:
Search of Automobile     Citation: 2007-Ohio-5993

Holding: Law enforcement officers may briefly stop and detain an individual for investigation if the officers have a reasonable, articulable suspicion that criminal activity may be afoot. Terry v. Ohio (1968), 392 U.S. 1. Articulable suspicion is more than a mere hunch, but less than the level of suspicion required for probable cause. Here, the officers conducted a Terry stop based on an individual's excited statements that a driver in traffic had a gun and pointed it at the individual.

Good language: Where a police officer, during an investigative stop, has a reasonable suspicion that an individual is armed based on the totality of the circumstances, the officer may initiate a protective search of a stopped vehicle for the safety of himself and others.


Subject:
Wrongful entrustment of a motor vehicle     Citation: 2007-Ohio-5949

Holding: The city must prove that a person who owns or controls a motor vehicle permitted another to drive that vehicle, with knowledge or reasonable cause to know that the other's license was suspended.

Good language:
"Clearly, the only two elements to be proven by the prosecution are 1) the driver had authorization from the vehicle owner to drive the vehicle, and 2) the owner was not reasonably ignorant of the possibility that the driver was unlicensed to drive."


Subject:
Adoption     Citation: 2007-Ohio-5966

Holding: Father's consent to the adoption of his minor sons by the boys' stepfather is not required because he failed, without justifiable cause, to provide for the maintenance and support of the boys during the year immediately preceding the filing of the adoption petition.

Good language: There is no evidence that the father was financially impaired or was unable to pay child support during the relevant time period; he simply chose to discontinue supporting his sons.


Subject:
Guardianship of Elderly     Citation: 2007-Ohio-5967

Holding: R.C. 2111.01(D) defines an "incompetent" as "any person who is so mentally impaired as a result of a mental or physical illness or disability, or mental retardation, or as a result of chronic substance abuse, that the person is incapable of taking proper care of the person's self or property * * *." There is a presumption that once a person is found to be incompetent that he or she remains incompetent, but the presumption is rebuttable.

Good language: She was able to recite her address and that she lives with her son, although she could not name her son. She did not recognize the co-guardian of the estate. She testified that she pays her own bills and has approximately $100 per month. When asked, she stated she has eight children when she has six, but when asked to name the children, she was able to do so.


Subject:
Child Endangering     Citation: 2007-Ohio-6050

Holding: This Court has held that the term "abuse," means to "ill-use, maltreat; to injure, wrong or hurt." The term "torture”, means:
(1) the infliction of severe pain or suffering (of body or mind);
(2) acting upon violently in some way, so as to strain, wrenc, distort, twist, pull or knock about.
Finally, to treat a person "cruelly" means to:
(1) demonstrate indifference to or delight in another's suffering;
(2) treat severely, rigorously, or sharply.

Good language:
LaGeer Surles was convicted by a jury of two counts of endangering children after he and his wife, Montoya Surles, punished Mrs. Surles's two daughters, ages six and eight, by striking them repeatedly with a wet leather belt, causing deep tissue bruising.

Subject: Felonious Assault/Complicity     Citation: 2007-Ohio-6010
Holding: R.C. 2923.03 states, in relevant part:
"(A) No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following:
“Aid or abet another in committing the offense;"
"Aiding and abetting is defined as assisting or facilitating `the commission of a crime, or to promote its accomplishment.'" A defendant found guilty of complicity in the commission of an offense is prosecuted and punished "as if he were a principle offender."

Good language: One convicted of complicity "shall be prosecuted and punished as if he were the principal offender."

Subject: Forfeiture of Property     Citation: 2007-Ohio-6006
Holding: Man convicted of trafficking in marijuana and possession of cocaine in the underlying criminal case led to a forfeiture action. At the time of McShepard's arrest, he had $80,000 in cash and bank accounts and had purchased approximately $35,000 in real estate with cash. During his criminal trial, McShepard claimed that his funds were generated from Mac's Car Care. Rivera investigated this claim and found that Mac's Car Care had never filed a tax return in Ohio and that no telephone listing of any kind for Mac's Car Care could be located. Rivera also indicated that he had not "found any proof of legitimate income or earnings by McShepard." Rivera concluded his affidavit by stating that McShepard had twice been convicted of drug trafficking prior to this action, had currency totaling over $80,000, and had purchased roughly $35,000 in real estate while on probation from a felony drug abuse conviction.

Good language: The above facts are an indicia of a pattern of drug trafficking with investment of illegal drug proceeds into banks, safety deposit boxes and the real estate.


Subject: DUIA w/o Counsel at Plea     Citation: 2007-Ohio-6098

Holding: Prior uncounseled convictions are not valid prior convictions for penalty-enhancement purposes.

Good language: The Sixth Amendment right to counsel extends to misdemeanor criminal cases that could result in the imposition of a jail sentence. A criminal defendant may waive this right to counsel either expressly or impliedly from the circumstances of the case. An effective waiver requires the trial court to " * * * make sufficient inquiry to determine whether [the] defendant fully understands and intelligently relinquishes that right. In order to have a valid waiver, the trial court must be satisfied that the defendant made an intelligent and voluntary waiver with the knowledge that he will have to represent himself, and that there are dangers inherent in self-representation. A written waiver of counsel is not a substitute for a waiver in open court.

Subject: Probate of COPY of Will     Citation: 2007-Ohio-6081
Holding: R.C. 2107.03, A will in Ohio must be "in writing, signed at the end by the party making it, and be attested by two or more competent witnesses ***."

Good language: It has long been held that "there can be but one original, effective, and dispositive instrument to be considered a last will and testament, and however so many copies of that original will, exact in every detail***there are, these copies remain just that: copies - copies useful to show what had existed in the case of a lost, spoliated or destroyed will, but utterly ineffectual to be used as a substitute for the original will."

Thus, when a person has made and executed a will, and upon his death the original cannot be found, there is a presumption that the decedent has revoked it. This presumption applies, even if the person presents the probate court with an exact copy of the original.. The presumption can be overcome only by clear and convincing evidence that the testator did not revoke it.

 

Subject: Plea of Guilty     Citation: 2007-Ohio-6192
Holding: The trial court court failed to advise him of his rights before accepting his guilty plea and also failed to inform him that he would be subject to post-release control.

Good language: The state concedes that the court failed to advise appellant of his constitutional rights as required by Criminal Rule 11. We therefore sustain the first assignment of error and vacate Rice's guilty plea.

 

Subject: Expungement     Citation: 2007-Ohio-6201
Holding: A trial court errs in ruling on a motion for expungement filed pursuant to R.C. 2953.32 without first holding a hearing. R.C. 2953.32(B).

Good language: Under R.C. 2953.32(B), Upon the filing of the application for expungement, the court shall set a date for a hearing and shall notify the prosecutor for the case of the hearing on the application. The prosecutor may object to the granting of the application by filing an objection with the court prior to the date set for hearing. As set forth in R.C. 2953.32(B), a hearing on an application for expungement is mandatory.

 

Subject: ‘As is’ purchase     Citation: 2007-Ohio-6615
Holding: Section 1302.29(C)(1) of the Ohio Revised Code provides: unless the circumstances indicate otherwise all implied warranties are excluded by expressions like `as is,' `with all faults,' or other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty.

Good language: A salesman's mere expression of opinion or commendation of the goods does not create an express warranty.

 

Subject: DUIA Field Tests     Citation: 2007-Ohio-6691
Holding: Traffic violations of a de minimis nature are not sufficient, even when combined with a slight odor of an alcoholic beverage and an admission to having consumed `a couple' of beers, to support a reasonable and articulable suspicion of driving under the influence.

Good language: Deputy Bennett never characterized the odor of alcohol he smelled nor did he state it was coming from the breath or person of Bennett. Deputy Bennett never testified that he observed any indicia of Morgan's possible intoxication. Deputy Bennett never testified that he slurred his speech in talking to Bennett, had bloodshot eyes, or had any difficulty exiting his truck and walking to the deputy's cruiser.

 

Subject: Cross-Exam of Expert     Citation: 2007-Ohio-6725
Holding: The report, including the attached affidavit, was specifically intended to be used in a subsequent criminal trial. Accordingly, laboratory reports such as the one admitted in this matter meet all three of the examples of a testimonial statement given in Crawford.

Good language: The US Supreme Court in Crawford vs. Washington provided three examples of a testimonial statement, including: (1) in-court testimony or its functional equivalent, including affidavits; (2) statements contained in formal testimonial materials, including depositions and affidavits; and (3) statements made where an objective declarant would reasonably believe the statement would be available to be used at a subsequent trial.

 

Subject: Shared Parenting Plan    Citation: 2007-Ohio-6628
Holding: In determining whether to adopt a shared parenting plan, a trial court must consider the ability of the parents to cooperate and make decisions jointly, with respect to the children.

Good language: "Both parents appear likely to honor companionship, but the parties have a relationship of mutual suspicion and distrust, rendering real cooperation in raising the children unlikely."

 

Subject: Domestic Violence – Civil     Citation: 2007-Ohio-6635
Holding: 1. The appeal is not rendered moot by virtue of the expiration of the domestic violence civil protection order because it is reasonably possible that adverse collateral consequences may occur.
2. The term "recklessly" is defined as "heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, he perversely disregards a known risk that such circumstances are likely to exist." R.C. 2901.22(C).

Good language: When granting a domestic violence civil protection order under R.C. 3113.31, the trial court must find that the petitioner has shown by a preponderance of the evidence that the petitioner or the petitioner's family or household members are in danger of domestic violence.

 

Subject: State v. Armstrong     Citation: 2007-Ohio-6405
On August 22, 2005, at approximately 9:39 p.m., Mr. Armstrong was driving a bulldozer eastbound in the westbound lane of Rock Creek Road, without headlights, while intoxicated. A confrontation with two police officers ensued and ultimately, Mr. Armstrong dropped the bucket of the bulldozer onto a police cruiser, smashing the windshield and hood of the vehicle. The grand jury returned an indictment on October 6, 2005, for two counts of felonious assault to a police officer, in violation of R.C. 2903.11(A)(2), felonies of the first degree, and one count of vandalism, in violation of R.C. 2909.05(B)(2), a felony of the fourth degree.

Mr. Armstrong entered a plea of not guilty at his arraignment on October 14, 2005. On December 21, 2005, Mr. Armstrong filed a motion for a competency and mental evaluation to stand trial and for his mental condition at the time of the offense, as well as a motion to change his plea to not guilty by reason of insanity. The court granted the motion for a competency evaluation and ordered that an evaluation be performed pursuant to R.C. 2945.371(A) on January 1, 2006. On May 19, 2006, on the court's own motion, a copy of the examiner's report was disclosed to both the prosecutor and Mr. Armstrong's counsel.

On May 25, 2006, the date of the scheduled competency hearing, Mr. Armstrong signed a plea agreement in which he agreed to enter an Alford plea to the lesser included offense of felonious assault and pay fines of $713.10 to Geauga County and $250 to Clemson Towing for the damage he caused to the police cruiser. In return, the state agreed to seek leave to dismiss counts two and three. The court accepted Mr. Armstrong's Alford plea on May 31, 2006, and the case was set for sentencing on July 6, 2006.

However, on July 6, 2006, Mr. Armstrong appeared before the court for sentencing, pro se and intoxicated.

 

Subject: Citation Civil Fines for Speeding     Citation: 2008-Ohio-270
Holding: The Ohio Supreme Court approved the use of cameras for speeding and other traffic offenses.  The payment of a fine is authorized. 

Good language: The city did not exceed home rule authority by imposing civil fines for traffic offenses.

 

Subject: Blood-alcohol test & right to counsel      Citation: 2008-Ohio-550
Holding: Tests are not critical stage of criminal prosecution and are beyond Sixth Amendment's protection, and exclusionary rule does not apply.  No right to counsel during the BAC test.