author: HENDRICKSON, P.J.

text:
    In the MATTER OF: S.A.R.
    NO. CA2017-04-010
    Court of Appeals of Ohio, Twelfth District, Madison County.
    January 22, 2018
    Jeremy Dodgion, 1188 South High Street, Columbus, Ohio 43206, for appellant, S.A.R.
    Stephen J. Pronai, Madison County Prosecuting Attorney, Rachel M. Price, 59 North Main Street, London, Ohio 43140, for appellee, state of Ohio
   HENDRICKSON, P.J.

{¶ 1} Appellant, S.A.R., a juvenile, appeals from a decision of the Madison County Court of Common Pleas, Juvenile Division, denying his motion to withdraw his no contest plea to a speeding violation. For the reasons set forth below, we affirm the decision of the juvenile court.

{¶ 2} On January 15, 2017, S.A.R. was stopped by law enforcement on U.S. 40 in Jefferson Township, Ohio, and was issued a citation for speeding in violation of R.C. 4511.21(D)(2). The officer's radar recorded S.A.R.'s vehicle traveling 70 m.p.h. in a 50-m.p.h. zone.

{¶ 3} A hearing was held on January 31, 2017, and S.A.R. appeared before the court with his father. At this time, S.A.R. and his father indicated they had reviewed and signed both the Madison County Juvenile Rights and Procedures Form as well as the Juvenile Rule 3 Requirement Form. The Rights and Procedures Form advised S.A.R. and his father as follows:

RIGHTS AND PROCEDURES
The following information constitutes the arraignment procedure in Juvenile Court for complaints alleging violations of the traffic code.
You have the following rights which you may exercise or waive:
1. You may deny the charge and request a trial before the Court at which time the county prosecutor will be required to prove the case beyond a reasonable doubt before you can be adjudicated a juvenile traffic offender. The trial is usually scheduled three to four weeks from the date of the arraignment.
a. You may cross-examine and ask questions of any witness who testifies to prove the charge at trial.
b. You may testify yourself, if you wish. You cannot be compelled to testify and you may remain silent on a denial at trial.
c. You may call anyone to testify upon your request. The witnesses you wish to testify can be compelled to appear for you by filing with the Court a request, in writing, called a precipe for subpoena, stating the name and address of the witness, and if they can be located by the sheriff prior to trial, they will be required to attend.
d. You may be represented by an attorney and can be granted a continuance for an opportunity to consult an attorney
e. A recording will be made of the proceedings.
2. You may admit the charge and the Court will proceed to disposition or continue the case for deposition at a later date.
* * *
DISPOSITION FOR TRAFFIC CASES
The Court MAY impose the following penalties for any first time juvenile traffic offender:
1. Suspend or revoke the juvenile's operator's license for up to two years;
2. Place the juvenile on Community Control and/or Probation;
3. Order restitution * * *;
4. Impose a fine[.]
* * *
The Court SHALL impose the following penalty for any juvenile admitting to, or found guilty of, a second moving violation:
The juvenile's operator's license SHALL be suspended for a minimum of ninety (90) days. The Court MAY additionally impose any of the penalties listed for first time offenders.

(Emphasis sic.)

{¶ 4} The Juvenile Rule 3 Requirement Form advised S.A.R. and his father that the charge S.A.R. faced could result in S.A.R. being placed in a juvenile detention facility and informed S.A.R. that he had the right to have a lawyer appointed to assist him in court. The form listed the benefits of having representation and advised S.A.R. that "[b]efore you decide to give up your right to a lawyer, you should discuss this with your parent(s)/guardian to make sure you are making this decision knowingly and intelligently." The form further provided as follows:

[I]f you and your parent(s) sign this form you are telling Judge Brown:
That you have discussed with your parent(s)/guardian what a lawyer is.
That you have discussed with your parent(s)/guardian how a lawyer would help you.
That you understand a lawyer will not cost you any money (other than the $25 application fee).
That your parent(s)/guardian are not lawyers and are not able to provide you with legal assistance in Court.
And that you understand that it is not a good idea to represent yourself in Court.
* * *
To Parent(s)/Guardian: By signing below, I/we state that I/we have discussed with our child the disadvantages of not having a lawyer represent my/our child in Juvenile Court.

{¶ 5} The juvenile court addressed these forms with S.A.R. and his father, and advised S.A.R. that because this was his second offense, there was a mandatory suspension of his license for 90 days up to a maximum of two years, the court could place him on probation until he was 21 years old, it could impose a maximum fine of $50, and it could order him to pay court costs. When S.A.R. indicated he understood the possible penalties and wished to enter a no contest plea to the charges, the juvenile court orally advised S.A.R. of the rights he would be waiving by entering this plea. The court stated,

You understand by entering a no contest plea you waive all the rights that were read to you earlier? The right to trial, the right to hold the prosecution to their burden of proof, the right to be represented by counsel, the right to cross-examine the prosecution's witnesses, the right to present evidence and use the Court's subpoena power in order to do so, the right to testify if you choose to testify even though you cannot be compelled to do so. Do you understand you are waiving those rights?

S.A.R. indicated he understood that he would be waiving his rights and that he wished to plead no contest. The juvenile court accepted S.A.R.'s plea, finding it had been entered knowingly, intelligently, and voluntarily.

{¶ 6} The case proceeded to disposition, where the juvenile court commented that this was the second time S.A.R. had appeared before it within the last few weeks. The court noted that in the other case, S.A.R. had been represented by counsel and neither S.A.R. nor his attorney had informed the court that S.A.R. had received a second traffic violation. The court stated:

I had you here about a week ago, and at that time you were represented by counsel, and it was a case that dated back, I believe, to July 4th. And part of your attorney's recitation to me, which weighed into my decision in that case, was that this young man had not been in any further trouble since July the 4th. I made that statement in open court. I know I did. I made it.
And neither one of you said the first thing about him receiving this ticket, which to me amounts to somewhat perpetrating a fraud upon the Court, not being completely open and honest with me, and I do not take that lightly.

The court suspended S.A.R.'s license for two years, imposed a $25 fine, and ordered S.A.R. to pay court costs.

{¶ 7} On January 31, 2017, S.A.R. filed a petition requesting driving privileges for school and a work-study program. The juvenile court denied S.A.R.'s request. Thereafter, on March 6, 2017, S.A.R. filed a motion to withdraw his no contest plea on the basis that he "was not afforded counsel at the time of his plea, did not understand the nature and potential sentences of the charge, and was perhaps not guilty or had a complete defense of the charge." The juvenile court denied S.A.R.'s motion without a hearing.

{¶ 8} S.A.R. appeals the denial of his motion to withdraw his plea, raising two assignments of error. As the assignments of error are related, we will address them together.

{¶ 9} Assignment of Error No. 1:

{¶ 10} THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION TO WITHDRAW GUILTY PLEA [SIC] DESPITE THE PRESENCE OF MANIFEST INJUSTICE.

{¶ 11} Assignment of Error No. 2:

{¶ 12} THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION TO WITHDRAW GUILTY PLEA [SIC] WITHOUT FIRST HOLDING A HEARING.

{¶ 13} In his first assignment of error, S.A.R. contends he is entitled to relief pursuant to Crim.R. 32.1 as "[m]anifest injustice was present when S.A.R. entered a plea of 'no contest' without assistance [of counsel] and without understanding the potential consequences of his plea." He further argues, in his second assignment of error, that the juvenile court erred when it denied his motion to withdraw his plea without holding a hearing.

{¶ 14} Although S.A.R. has argued this appeal as though it concerns the denial of a motion to withdraw a no contest plea brought pursuant to Crim.R. 32.1, Crim.R. 1(C)(5) provides that the Rules of Criminal Procedure explicitly do not apply to "juvenile proceedings against a child." See In re J.J. , 9th Dist. Summit No. 21386, 2004-Ohio-1429, 2004 WL 574135, ¶ 5 ; In re McElfresh , 7th Dist. Belmont No. 02 BA 12, 2003-Ohio-1079, 2003 WL 932342, ¶ 12 ; In re L.D. , 8th Dist. Cuyahoga No. 78750, 2001 WL 1612114, at *1 (Dec. 13, 2001). Issues involving a plea entered pursuant to Juv.R. 29(C)" 'should be analyzed according the Rules of Juvenile Procedure and the constitutional protections springing therefrom which may be applicable to both adult and juvenile criminal prosecutions.' " In re J.J. at ¶ 5, quoting In re L.D. at *4. "Accordingly, an appellate court should proceed to address an assigned error regarding a motion to withdraw an admission under a Juv.R. 29(D) analysis." Id.

{¶ 15} Juv.R. 29(D) provides, in relevant part, as follows:

The court may refuse to accept an admission and shall not accept an admission without addressing the party personally and determining both of the following:
(1) The party is making the admission voluntarily with understanding of the nature of the allegations and the consequences of the admission;
(2) The party understands that by entering an admission the party is waiving the right to challenge the witnesses and evidence against the party, to remain silent, and to introduce evidence at the adjudicatory hearing.

Although Juv.R. 29(D) speaks in terms of an "admission," it applies equally to pleas of no contest. See Juv.R. 29(C) (noting that "[a] failure or refusal to admit the allegations [to a complaint] shall be deemed a denial, except in cases where the court consents to entry of a plea of no contest" [emphasis added] ). Just as an admission in juvenile proceedings pursuant to Juv.R. 29(D) is analogous to a guilty plea made by an adult pursuant to Crim.R. 11(C), a no contest plea in juvenile proceedings pursuant to Juv.R. 29(C) and (D) is analogous to a no contest plea made in accordance with Crim.R. 11(C). See In re Beechler , 115 Ohio App.3d 567, 571, 685 N.E.2d 1257 (4th Dist.1996). See also State v. Beasley , 152 Ohio St.3d 470, 2018-Ohio-16, 97 N.E.3d 474, ¶ 11, citing Crim.R. 11(B)(2) ("a plea of no contest is not an admission of guilt but 'an admission of the truth of the facts alleged in the indictment, information, or complaint' "). Both Crim.R. 11(C) and Juv.R. 29(D) require the respective trial courts to make careful inquiries in order to ensure the plea is entered voluntarily, intelligently, and knowingly. In re Beechler at 571-572, 685 N.E.2d 1257.

{¶ 16} "If the trial court substantially complies with Juv.R. 29(D) in accepting an admission by a juvenile, the plea will be deemed voluntary absent a showing of prejudice by the juvenile or a showing that the totality of the circumstances does not support the finding of a valid waiver." In re C.S. , 115 Ohio St.3d 267, 2007-Ohio-4919, 874 N.E.2d 1177, paragraph six of the syllabus. "[S]ubstantial compliance means that in the totality of the circumstances, the juvenile subjectively understood the implications of his plea." Id. at ¶ 113.

{¶ 17} After thoroughly reviewing the record, we conclude that the juvenile court complied with the requirements of Juv.R. 29(D) in accepting S.A.R.'s no contest plea, that S.A.R. subjectively understood the implications of his plea, and that his plea was voluntarily, intelligently, and knowingly entered. The juvenile court explained the nature of the speeding charge S.A.R. faced and the possible penalties the court could impose if S.A.R. pled to the offense. The court stated, "This appears to be your second offense. As such, there's a mandatory suspension of your license for 90 days up to a maximum of two years. There's also a maximum fine of $50, plus court costs * * * [and] I can also place you on probation until the age of 21. Do you understand all those penalties?" S.A.R. indicated to the juvenile court he understood the possible penalties.

{¶ 18} The juvenile court also advised S.A.R. that by pleading no contest to the speeding violation, he would be waiving certain rights, such as "[t]he right to trial, the right to hold the prosecution to their burden of proof, the right to be represented by counsel, the right to cross-examine the prosecution's witnesses, the right to present evidence and use the Court's subpoena power in order to do so, the right to testify if you choose to testify even though you cannot be compelled to do so." When asked by the juvenile court if he understood the rights he would be waiving, S.A.R. stated, "Yes, sir."

{¶ 19} In addition to having his rights explained to him by the juvenile court, S.A.R. was also provided with the Rights and Procedures Form. This form listed the rights S.A.R. was entitled to exercise or waive and provided the possible penalties for a second traffic violation. Prior to signing the form, S.A.R. indicated he read and understood the information contained in the form and wished to enter a no contest plea to the speeding charge.

{¶ 20} Despite the juvenile court's compliance with Juv.R. 29(D), S.A.R. nonetheless contends he was "unable to make an informed decision regarding his plea" because he was not represented by counsel. However, the record demonstrates that S.A.R. made a valid waiver of his right to counsel, in accordance with Juv.R. 3(D) and Juv.R. 29(B), after being counseled and advised by his father. See In re C.S. , 2007-Ohio-4919, 115 Ohio St.3d 267, 874 N.E.2d 1177 at paragraph two of the syllabus (recognizing that "a juvenile may waive his constitutional right to counsel, subject to certain standards, if he is counseled and advised by his parent, custodian, or guardian"). The totality of the circumstances, including S.A.R.'s age, education, his experience with the juvenile court, his father's presence at the January 31, 2017 hearing, and his execution of the Juvenile Rule 3 Requirement Form, demonstrate S.A.R.'s waiver of his right to counsel was valid. See id. at paragraph four of the syllabus. At the time S.A.R. appeared before the juvenile court, waived his right to counsel, and entered his no contest plea, S.A.R. was a 17-year-old high school student with a prior traffic offense adjudication. S.A.R.'s prior traffic offense violation, for which he was represented by counsel, provided S.A.R. with some experience and familiarity with juvenile court proceedings. Further, S.A.R. was accompanied by his father at the January 31, 2017 hearing, and the record indicates S.A.R. and his father discussed the disadvantages of proceeding without representation, S.A.R. indicated he understood the disadvantages when questioned by the court, and both S.A.R. and his father signed the Juvenile Rule 3 Requirement Form.

{¶ 21} Accordingly, given the totality of the circumstances, we conclude S.A.R. made a valid waiver of his right to counsel and he subjectively understood the implications of his plea. S.A.R.'s contention that his motion to withdraw his no contest plea should have been granted is without merit and his first assignment of error is overruled.

{¶ 22} Additionally, S.A.R.'s argument that the juvenile court erred when it denied his motion without first holding a hearing is also without merit. The juvenile court did not abuse its discretion in denying the motion without first holding a hearing as the record demonstrated the plea was made in compliance with Juv.R. 29(D) and was knowingly, intelligently, and voluntarily entered. See, e.g. , State v. Degaro , 12th Dist. Butler No. CA2008-09-227, 2009-Ohio-2966, 2009 WL 1743743, ¶ 13 (noting that a court need not hold a hearing on a postsentence motion to withdraw a guilty plea "where the record indicates the movant is not entitled to relief"). S.A.R.'s second assignment of error is, therefore, overruled.

{¶ 23} Judgment affirmed.

S. POWELL and RINGLAND, JJ., concur.

      Even if we were to review S.A.R.'s arguments under the standard set forth in Crim.R. 32.1, this court reaches the same conclusion. S.A.R. has not demonstrated the existence of a manifest injustice necessitating withdrawal of his plea. The record demonstrates S.A.R.'s plea was knowingly, intelligently, and voluntarily made.


source: Caselaw Access Project

author: COLLEEN MARY O'TOOLE, J. TIMOTHY P. CANNON, J., concurring.

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee, v. Brianna BERNARD, Defendant-Appellant.
    NO. 2016-A-0063
    Court of Appeals of Ohio, Eleventh District, Ashtabula County.
    Decided January 29, 2018
    Mike DeWine, Ohio Attorney General, State Office Tower, 30 East Broad Street, 16th Floor, Columbus, Ohio 43215; Brian Deckert, Special Assistant Prosecutor, Ohio Attorney General's Office, 615 West Superior Avenue, 11th Floor, Cleveland, OH 44113 (For Plaintiff-Appellee).
    Michael A. Hiener, P.O. Box 1, Jefferson, OH 44047 (For Defendant-Appellant).
   COLLEEN MARY O'TOOLE, J.

{¶ 1} Appellant, Brianna Bernard, appeals from the October 5, 2016 judgments of the Ashtabula County Court of Common Pleas, convicting and sentencing her for aggravated robbery, aggravated burglary, felonious assault, and kidnapping following a jury trial. For the reasons set forth below, this court finds appellant was denied a fair trial because of the admission of prejudicial other acts evidence pursuant to Evid.R. 404(B). This court further finds the evidence presented is not sufficient to support appellant's convictions as a matter of law. Therefore, we reverse the trial court's judgments and vacate appellant's convictions.

{¶ 2} On September 25, 2014, appellant was indicted by the Ashtabula County Grand Jury on ten counts involving a home invasion with three separate victims, Heather Marx, Matthew Carnes, and Abigail Grubbs: three counts of aggravated robbery (counts one through three), felonies of the first degree, in violation of R.C. 2911.01(A)(1) ; one count of aggravated burglary (count four), a felony of the first degree, in violation of R.C. 2911.11(A)(2) ; three counts of felonious assault (counts five through seven), felonies of the second degree, in violation of R.C. 2903.11(A)(2) ; and three counts of kidnapping (counts eight through ten), felonies of the first degree, in violation of R.C. 2905.01(A)(2). Each count carried a firearm specification. Appellant was represented by counsel, pleaded not guilty to all charges, and waived her right to a speedy trial.

{¶ 3} On November 2, 2015, appellee, the state of Ohio, filed a notice of intention to use other acts evidence pursuant to Evid.R. 404(B) and R.C. 2945.59 to show appellant's identity, knowledge, absence of mistake, common scheme or plan, and modus operandi. Specifically, the state sought to present evidence of other home invasions in which appellant was the getaway driver.

{¶ 4} In response, appellant filed a motion to exclude any evidence related to other crimes, wrongs, or acts. Appellant asserted that the other acts evidence contains many significant factual differences from the instant case, is very highly prejudicial to her, and undermines her rights to due process and a fair trial.

{¶ 5} The trial court subsequently found the evidence to be admissible and permitted the state to use other acts evidence during the jury trial.

{¶ 6} On January 19, 2016, the state filed a motion for joinder, Case Nos. 2014 CR 00564 (involving appellant) and 2014 CR 00571 (involving appellant's co-defendant Marcus Lashley). Appellant and co-defendant Lashley filed separate responses. In appellant's response, she indicated that undue prejudice would result from joinder because she and her co-defendant would be asserting antagonistic defenses which are mutually exclusive to each other, and that the defenses would likely differ to an extent that would confuse the jury at appellant's expense. Nevertheless, following a hearing, the trial court ordered the matters be joined into a single action for purposes of trial.

{¶ 7} A jury trial commenced on September 27, 2016. The state submitted 74 exhibits and the following ten witnesses testified on its behalf: Officers Thomas Simcich, Chris Mackensen, and Denny Moore with the Conneaut Police Department ("CPD"); Detective Michael Sullivan with the CPD; Detective William Felt, Jr. with the Ashtabula City Police Department ("ACPD"); Lieutenant Dennis Dibble with the ACPD; Special Agent Edward Lulla with the Ohio Bureau of Criminal Investigation ("BCI"); forensic scientist Emily Feldenkris with BCI; Heather Marx, a victim; and Alyssa Hill, Highland Place Apartments property manager.

{¶ 8} Heather Marx and her young son lived at Highland Place Apartments, 446 West Main Road, Apartment 101, Conneaut, Ohio. Matthew Carnes is Marx's boyfriend. Abigail Grubbs is Marx's friend and babysitter to her son. On January 26, 2014, Marx was in her apartment with her son, her son's friend, and Grubbs. Marx later left to pick up Carnes.

{¶ 9} When they returned, the apartment was dark. Marx walked to the bedroom and was hit on the head several times by one of two assailants, who were wearing masks. She passed out. When Marx awoke, she had been tied up with belts and the men were gone. Her phone and car keys were missing. Carnes and Grubbs were also injured.

{¶ 10} Officer Simcich was dispatched to Marx's apartment regarding a report of a home invasion by two masked African American men with handguns. Upon his arrival, Officer Simcich observed Marx with a laceration on her forehead and blood on her hair and clothing. Marx was crying and extremely distraught. Marx indicated she was assaulted by one of the two masked men. The apartment was in disarray.

{¶ 11} On cross-examination, Officer Simcich testified that he had to be "buzzed into" Marx's apartment building. He also stated there were no signs of forced entry.

{¶ 12} Officer Mackensen provided back-up assistance. He confirmed the condition of the apartment occupants. While outside, Officer Mackensen noticed footprints in the snow which he followed across Route 20 to 445 West Main. The trail led to a parking lot with some tire tracks and what appeared to be the contents of an ashtray emptied on the ground. Officer Mackensen secured the scene and pointed out the potential evidence to Detective Sullivan, who arrived about 30 minutes later. A cigarette butt and a napkin cutting were sent for testing. Appellant was later contacted and gave a DNA sample. Forensic scientist Feldenkris with BCI confirmed the DNA profile from the cigarette butt and napkin cutting was consistent with appellant.

{¶ 13} On cross-examination, Officer Mackensen indicated the footprints in the snow were not tied to any person or pair of shoes. He also said no one saw who made the footprints.

{¶ 14} Alyssa Hill, the apartment property manager, authenticated a video of the outside area of the apartment building which was played in open court. Detective Sullivan pointed out that the video showed two individuals entering the apartment, a vehicle pulling into the parking lot, and two individuals leaving the apartment and running away.

{¶ 15} On cross-examination, Detective Sullivan testified it appeared the two individuals entered the apartment building by merely opening the door, which meant that someone in one of the twelve units had "buzzed" them in. No indication of the identity of the two individuals, including gender and race, was able to be made from the video.

{¶ 16} The next day, January 27, 2014, Detective Felt was dispatched to the scene of a double murder on Norman Avenue, Ashtabula, Ohio. Footprints in the snow at this crime scene were followed. Some torn clothing and blood from the top of a fence were found. Special Agent Lulla with BCI was dispatched. BCI confirmed the DNA profile of the blood belonged to co-defendant Lashley. Also found and recovered was a knit hat. BCI confirmed the DNA profile of the hat belonged to Taquan Mathers.

{¶ 17} During the investigation of the Norman Avenue murders, appellant was implicated as a suspect in that case as well as in another incident on Hiawatha Avenue, Ashtabula, Ohio. Authorities were looking for a silver four-door SUV thought to be involved in the Norman Avenue murders. A vehicle of a similar make, model, and color registered to appellant's mother, Michelle Bernard, was located but never searched.

{¶ 18} At the close of the state's case, appellant's counsel moved for an acquittal pursuant to Crim.R. 29. The trial court dismissed counts one and three (aggravated robbery), five and seven (felonious assault), and eight and ten (kidnapping) relating to the alleged victims, Matthew Carnes and Abigail Grubbs.

{¶ 19} Appellant did not testify and presented no witnesses. Appellant's counsel renewed its Crim.R. 29 motion for acquittal regarding the remaining counts, which was overruled by the trial court.

{¶ 20} Following trial, the jury found appellant guilty on count two (aggravated robbery), count four (aggravated burglary), count six (felonious assault), and count nine (kidnapping) relating to the victim, Heather Marx. The jury found appellant not guilty of any of the firearm specifications.

{¶ 21} Co-defendant Lashley was acquitted of all charges.

{¶ 22} The trial court merged appellant's counts two and four for purposes of final conviction and sentencing. Appellant was sentenced to five years in prison on count four, three years on count six, and five years on count nine. Counts four and nine were ordered to run concurrently with one another and consecutively with count six for a total prison sentence of eight years, with 211 days of credit for time served. The court advised appellant that upon her release from prison, she will have a period of post-release control for five years. Appellant filed a timely appeal and asserts the following three assignments of error:

{¶ 23} "[1.] The trial court erred to the prejudice of Appellant when it allowed Appellee to submit other bad acts evidence pursuant to Evid.R. 404(B).

{¶ 24} "[2.] The verdict is against the manifest weight of the evidence and the sufficiency of the evidence.

{¶ 25} "[3.] The trial court erred when entering inconsistent verdicts against Appellant."

{¶ 26} In her first assignment of error, appellant argues the trial court erred in allowing the state to submit other bad acts evidence pursuant to Evid.R. 404(B).

{¶ 27} "[A]ppellate review of a trial court's decision regarding the admissibility of other crimes, wrongs, or acts under Evid.R. 404(B) is conducted under an abuse-of-discretion standard." State v. Morris , 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 1. The term "abuse of discretion" is one of art, connoting judgment exercised by a court which neither comports with reason, nor the record. State v. Ferranto, 112 Ohio St. 667, 676-678, 148 N.E. 362 (1925). An abuse of discretion may be found when the trial court "applies the wrong legal standard, misapplies the correct legal standard, or relies on clearly erroneous findings of fact." Thomas v. Cleveland, 176 Ohio App.3d 401, 2008-Ohio-1720, 892 N.E.2d 454, ¶ 15 (8th Dist.)

{¶ 28} Evid.R. 404(B) states in part:

{¶ 29} "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."

{¶ 30} Similarly, R.C. 2945.59 provides:

{¶ 31} "In any criminal case in which the defendant's motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant."

{¶ 32} "Evidence of other acts under R.C. 2945.59 and Evid.R. 404(B) is to be construed against admissibility. * * * This is because '(t)he average individual is prone to much more readily believe that a person is guilty of the crime charged if it is proved to his satisfaction that the defendant has committed a similar crime.' * * *" (Footnote citations omitted.) State v. Burns , 11th Dist. Lake No. 2000-L-189, 2002-Ohio-3585, 2002 WL 1488917, ¶ 16.

{¶ 33} " '[C]ourts have long recognized the danger of admitting other-acts evidence. In United States v. Phillips (1979), 599 F.2d 134, 136, the Sixth Circuit Court of Appeals stated as follows: 'Two concerns are expressed by the first sentence of (Fed.R.Evid.) 404(b) : (1) that the jury may convict a "bad man" who deserves to be punished-not because he is guilty of the crime charged but because of his prior or subsequent misdeeds; and (2) that the jury will infer that because the accused committed other crimes, he probably committed the crime charged.' As cautioned by the Ohio Supreme Court in State v. Lowe (1994), 69 Ohio St.3d 527, [634 N.E.2d 616], 'we therefore must be careful (* * *) to recognize the distinction between evidence which shows that a defendant is the type of person who might commit a particular crime and evidence which shows that a defendant is the person who committed a particular crime.' (Emphasis sic.) Id. at 530 [634 N.E.2d 616]. This danger is particularly high when the other acts are very similar to the charged offense * * *.' " Lyndhurst v. Smith , 8th Dist. Cuyahoga No. 97045, 2012-Ohio-2920, 2012 WL 2458215, ¶ 26, quoting State v. Williams , 195 Ohio App.3d 807, 2011-Ohio-5650, 961 N.E.2d 1200, ¶ 37-38 (8th Dist.) (en banc).

{¶ 34} "In addition, other-acts evidence is subject to the limitations provided in Evid.R. 402 and 403 ; therefore, the proffered evidence must be relevant and its probative value must outweigh its potential for unfair prejudice." Smith,supra, at ¶ 27.

{¶ 35} In determining whether to permit other acts evidence to be admitted, trial courts should conduct a three-step analysis set forth in State v. Williams , 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278 : "The first step is to consider whether the other acts evidence is relevant to making any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Evid.R. 401. The next step is to consider whether evidence of the other crimes, wrongs, or acts is presented to prove the character of the accused in order to show activity in conformity therewith or whether the other acts evidence is presented for a legitimate purpose, such as those stated in Evid.R. 404(B). The third step is to consider whether the probative value of the other acts evidence is substantially outweighed by the danger of unfair prejudice. See Evid.R. 403." Id. at ¶ 20.

{¶ 36} In this case, as stated, on November 2, 2015, the state filed a notice of intention to use other acts evidence pursuant to Evid.R. 404(B) and R.C. 2945.59 to show appellant's identity, knowledge, absence of mistake, common scheme or plan, and modus operandi. Specifically, the state sought to present evidence of other home invasions in which appellant was the getaway driver. The state indicated these other acts directly relate to appellant's possible defense that she was unaware of what criminal activity was occurring inside of the homes. The state's motion alleged the following other acts: (1) on January 27, 2014 a double murder by two masked African American men occurred on Norman Avenue, Ashtabula, Ohio; (2) the DNA of appellant's co-defendant, Marcus Lashley, was found on a glove inside the Norman Avenue home and on a blood spear on an outside fence; (3) Lashley and Taquan Mathers implicated appellant as the driver and video evidence reveals appellant was in the area around the time of the homicides; and (4) on November 25, 2013, Edward Smith committed a double homicide on Hiawatha Avenue, Ashtabula, Ohio, in which appellant was charged in that case with complicity, pleaded guilty to obstructing justice, and had indicated to police that she dropped Smith off at the house and picked him up afterward.

{¶ 37} In response, appellant filed a motion to exclude any evidence related to other crimes, wrongs, or acts. Appellant asserted that the other acts evidence contains many significant factual differences from the instant case, is very highly prejudicial to her, and undermines her rights to due process and a fair trial.

{¶ 38} The trial court subsequently found the evidence to be admissible and permitted the state to use other acts evidence during the jury trial.

{¶ 39} At trial, appellant's counsel renewed her objection to allowing the introduction of other acts evidence. Appellant's counsel stated the following:

{¶ 40} "I think it's going to be confusing to the Jury to be discussing a case in which [appellant] has already been convicted and a case for which she was never charged. There are several differences between the cases, the parties involved, the conduct that is alleged in each case." (Jury Trial T.p. 252).

{¶ 41} The trial court disagreed with appellant's counsel and permitted the other acts evidence.

{¶ 42} As to the first step of the Williams test, Detective Felt's testimony was not relevant to the crimes charged in this case. As stated, the following day after the incident in the case sub judice, a double murder occurred on Norman Avenue. Detective Felt was dispatched to the scene. Footprints in the snow were followed. Some torn clothing and blood from the top of a fence were found. BCI confirmed the DNA profile of the blood belonged to co-defendant Lashley. Also found and recovered was a knit hat. BCI confirmed the DNA profile of the hat belonged to Taquan Mathers.

{¶ 43} During the investigation of the Norman Avenue murders, appellant was implicated as a suspect in that case as well as in another incident on Hiawatha Avenue. Authorities were looking for a silver four-door SUV thought to be involved in the Norman Avenue murders. A vehicle of a similar make, model, and color registered to appellant's mother was located but never searched.

{¶ 44} As to the second and third steps of the Williams test, the evidence presented went to proving appellant's character and to showing that the conduct was in conformity with that character. The probative value of the other acts evidence was substantially outweighed by the danger of unfair prejudice.

{¶ 45} The jury heard evidence of other horrific crimes, but not appellant's acts. The only evidence presented allegedly tying appellant to the crimes in the January 26, 2014 case sub judice was that the DNA profile from the cigarette butt and napkin cutting, found in a nearby parking lot to Heather Marx's apartment, was consistent with appellant. The state presented no other evidence to the jury about any other involvement with respect to appellant in this case. Again, the trail in the snow led to a parking lot with some tire tracks and what appeared to be the contents of an ashtray emptied on the ground. The footprints in the snow were not tied to any one person or pair of shoes. Also, no one saw who made the footprints. Appellant did not present the anticipated defense of ignorance.

{¶ 46} The next day, in another case, Detective Felt was dispatched to the scene of a double murder on Norman Avenue. Footprints in the snow at that crime scene were followed. Some blood from the top of a fence was found, matching the DNA profile of co-defendant Lashley. Also found and recovered was a knit hat, matching the DNA profile of Taquan Mathers.

{¶ 47} During the investigation of the Norman Avenue murders, appellant was implicated as a suspect in that case as well as in another incident on Hiawatha Avenue. Authorities were looking for a silver four-door SUV thought to be involved in the Norman Avenue murders and seen on surveillance video. A vehicle of a similar make, model, and color registered to appellant's mother was located but never searched. No evidence tied that vehicle to the scene of any crime.

{¶ 48} Following trial, co-defendant Lashley (one of two alleged principal perpetrators) was acquitted of all charges. However, the jury found appellant (the alleged getaway driver) guilty on count two (aggravated robbery), count four (aggravated burglary), count six (felonious assault), and count nine (kidnapping) relating to the victim, Heather Marx.

{¶ 49} Although the state filed a notice of intention to use other acts evidence pursuant to Evid.R. 404(B) and R.C. 2945.59 to show appellant's identity, knowledge, absence of mistake, common scheme or plan, and modus operandi, the evidence went to showing appellant's bad character and that she acted in conformity therewith. This evidence comes squarely within the prohibition of Evid.R. 404(B) because it portrayed appellant as a bad person who deserves to be punished, thereby likely suggesting to the jury that because the accused committed or may have committed other acts/crimes, she probably committed these acts/crimes too. See Smith,supra, at ¶ 32. The evidence was personally damaging and "reaches the essence of the Evid.R. 404(B) prohibition because it relies on the very inferential pattern that '[s]he did it before, so [s]he must have done it again.' " Id. at ¶ 33, quoting State v. Nucklos, 171 Ohio App.3d 38, 2007-Ohio-1025, 869 N.E.2d 674, ¶ 87-88 (2d Dist.).

{¶ 50} It is this court's position that "we are loath to endorse inference-stacking as a means to upholding a conviction." State v. Armstrong , 11th Dist. Portage No. 2015-P-0075, 2016-Ohio-7841, 2016 WL 6876504, ¶ 28. "The rule against inference-stacking essentially forbids the drawing of an inference from evidence, which is too uncertain or speculative or which raises merely a possibility or conjecture. While reasonable inferences may be drawn from the facts and conditions established, they cannot be drawn from facts or conditions merely assumed." Id. at ¶ 23 ; see also State v. Payne, 11th Dist. Ashtabula No. 2014-A-0001, 2014-Ohio-4304, 2014 WL 4825334, ¶ 23.

{¶ 51} The trial court pointed out that "you can't try a case on an inference." (Jury Trial T.p. 636). However, the record reflects the state added an inference upon an inference to tie appellant to the crimes in this case. The state promised that, not only would it show appellant acted as the getaway driver for the principal perpetrators in the January 26, 2014 crimes at Heather Marx's apartment, it would also show that appellant had acted as the getaway driver for other crimes. The state inferred appellant was in the car, inferred that the car was hers or her mother's, inferred that she was the getaway driver, and inferred she acted with the same criminal intent as the principals. Based on the facts presented in this case, the state improperly stacked inferences. See Armstrong,supra, at ¶ 23, 28 ; Payne,supra, at ¶ 23.

{¶ 52} In light of all of the foregoing, we conclude appellant was denied a fair trial because the trial court erred in allowing the state to introduce other acts evidence in violation of Evid.R. 404(B) because it was used to prove appellant's character to show that she acted in conformity therewith. This error was prejudicial to appellant as there was not overwhelming independent evidence of her guilt.

{¶ 53} Appellant's first assignment of error is with merit.

{¶ 54} In her second assignment of error, appellant contends the verdict is against the manifest weight and the sufficiency of the evidence.

{¶ 55} Although we found merit with the first assignment of error, justifying a remand for a new trial, we must proceed to analyze whether there was sufficient evidence to support the trial court's denial of appellant's motion for acquittal. If there was insufficient evidence, the convictions would be vacated. See State v. Rose , 11th Dist. Lake No. 2014-L-086, 2015-Ohio-2607, 2015 WL 3964557, ¶ 32.

{¶ 56} A challenge to the sufficiency of the evidence raises a question of law as to whether the prosecution met its burden of production at trial. State v. Thompkins , 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997) ; see also State v. Windle , 11th Dist. Lake No. 2010-L-0033, 2011-Ohio-4171, 2011 WL 3655243, ¶ 25. "In reviewing the record for sufficiency, '[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.' " State v. Smith , 80 Ohio St.3d 89, 113, 684 N.E.2d 668 (1997), quoting State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, following Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; see also State v. Troisi , 179 Ohio App.3d 326, 2008-Ohio-6062, 901 N.E.2d 856, ¶ 9 (11th Dist.).

{¶ 57} When conducting this analysis, appellate courts are to look at the actual evidence admitted at trial, both admissible and inadmissible. Rose , supra , at ¶ 34, citing State v. Dengg , 11th Dist. Portage No. 2008-P-0063, 2009-Ohio-4101, 2009 WL 2488048, ¶ 68, citing Lockhart v. Nelson , 488 U.S. 33, 34, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988). Thus, for purposes of this analysis, we consider the inadmissible other acts evidence.

{¶ 58} "[C]ircumstantial evidence and direct evidence inherently possess the same probative value." State v. Fasline , 11th Dist. Trumbull No. 2014-T-0004, 2015-Ohio-715, 2015 WL 854884, ¶ 39, citing State v. Biros , 78 Ohio St.3d 426, 447, 678 N.E.2d 891 (1997), citing Jenks, supra , paragraph one of the syllabus. "Circumstantial evidence has been defined as testimony not grounded on actual personal knowledge or observation of the facts in controversy, but of other facts from which inferences are drawn, showing indirectly the facts sought to be established." State v. Payne , 11th Dist. Ashtabula No. 2014-A-0001, 2014-Ohio-4304, 2014 WL 4825334, ¶ 22, citing State v. Nicely , 39 Ohio St.3d 147, 150, 529 N.E.2d 1236 (1988). An inference is " 'a conclusion which, by means of data founded upon common experience, natural reason draws from facts which are proven.' " State v. Nevius , 147 Ohio St. 263, 294, 71 N.E.2d 258 (1947), quoting Ensel v. Lumber Ins. Co. of New York, 88 Ohio St. 269, 282, 102 N.E. 955 (1913). "It consequently follows that 'when circumstantial evidence forms the basis of a conviction, that evidence must prove collateral facts and circumstances, from which the existence of a primary fact may be rationally inferred according to common experience." State v. Armstrong , 11th Dist. Portage No. 2015-P-0075, 2016-Ohio-7841, 2016 WL 6876504, ¶ 22, quoting Windle , supra , at ¶ 34.

{¶ 59} A conviction, however, may not be based upon the "stacking of inferences." Payne,supra, at ¶ 23. "When an inference, which forms the basis of a conviction, is drawn solely from another inference and that inference is not supported by any additional facts or inferences drawn from other established facts, the conviction is improper." Id. ; see also State v. Maynard , 10th Dist. Franklin No. 11AP-697, 2012-Ohio-2946, 2012 WL 2463966, ¶ 27. "The rule against inference-stacking essentially forbids the drawing of an inference from evidence, which is too uncertain or speculative or which raises merely a possibility or conjecture. While reasonable inferences may be drawn from the facts and conditions established, they cannot be drawn from facts or conditions merely assumed." Armstrong,supra, at ¶ 23.

{¶ 60} We conclude the state produced adequate circumstantial evidence upon which the jury could reasonably infer that the principal perpetrators fled the apartment complex on foot to a nearby parking lot and that they fled the parking lot in a vehicle. However, the state failed to produce adequate evidence to permit the further inference that appellant was complicit in the crimes that were committed by the principals that night. In order to reach that conclusion, the jury was required to assume that the cigarette butt and napkin found in the parking lot originated from the vehicle in which the perpetrators fled; that there was a third party in the vehicle acting as a getaway driver; that the driver was appellant; and that appellant acted with the same criminal intent as the principals. This resulted in convictions based upon impermissible inference-stacking.

{¶ 61} Although the jury may have speculated, based on the inadmissible other acts evidence, that appellant was the getaway driver on the night in question, mere speculation is not enough. Armstrong,supra, at ¶ 28 ("Upon analysis, appellant's conviction[s] could only be based on an inference which was dependent not upon an established fact, but upon another inferential assumption. Although reasonable inferences may be drawn from evidence, it is the state's burden to present evidence on each element of the charged crime from which those inferences may be drawn. It must be borne in mind that proof must be sufficient for the jury to find guilt beyond a reasonable doubt. Thus, although the state need not exclude every reasonable theory of innocence to sustain a conviction, we are loath to endorse inference-stacking as a means to upholding a conviction.") (Emphasis sic.) See also State v. Marhefka , 2016-Ohio-7158, 71 N.E.3d 1229, ¶ 13-26.

{¶ 62} As a result, even if believed, the evidence presented is not sufficient to support appellant's convictions as a matter of law and, therefore, appellant's argument that the jury verdict was against the manifest weight of the evidence is moot.

{¶ 63} Appellant's second assignment of error is with merit.

{¶ 64} In her third assignment of error, appellant alleges the trial court erred in entering inconsistent verdicts.

{¶ 65} Based on our disposition of appellant's first and second assignments of error, her remaining assignment is moot and will not be addressed in this opinion. App.R. 12(A)(1)(c).

{¶ 66} For the foregoing reasons, appellant's first and second assignments of error are well-taken, and her third assignment of error is moot. The judgments of the Ashtabula County Court of Common Pleas are reversed and appellant's convictions are hereby vacated.

TIMOTHY P. CANNON, J., concurs with a Concurring Opinion,

CYNTHIA WESTCOTT RICE, J., concurs in part and dissents in part, with a Dissenting Opinion.

TIMOTHY P. CANNON, J., concurring.

{¶ 67} I concur with the majority's conclusion that the trial court erred when it allowed the state to introduce "other acts" evidence in violation of Evid.R. 404(B) because it was used to prove appellant's character to show she acted in conformity therewith. This error was prejudicial to appellant, as there was not overwhelming independent evidence of her guilt.

{¶ 68} I also agree that appellant's convictions should be vacated. I write separately to address the State's brief, which offers little accurate defense to appellant's contentions and takes great liberty with a recitation of the "other acts" evidence adduced at trial. The State contends the main purpose of Detective Felt's testimony, over objection, was "to give some sense of context to the DNA evidence which was recovered." His testimony did no such thing. Detective Felt testified there was a double homicide on Norman Avenue and was asked if officers were able to identify any vehicle that may have been involved. He responded: "To an extent, yes." They were looking for a "silver four-door SUV." When defense counsel objected, the trial court overruled the objection, stating: "All he said is they were looking for that type of a car. There's probably 10,000 silver four-door SUVs."

{¶ 69} The trial court allowed the detective to testify as to how he followed up on that lead. Detective Felt indicated he discovered that appellant's mother owned a silver four-door SUV and that appellant had "access" to it. There was no testimony, however, that appellant was seen driving that vehicle near the scene of the Norman Avenue homicides or that she ever drove that vehicle, let alone as a getaway driver.

{¶ 70} The State then attempted to elicit testimony about another murder, closely related in time, on Hiawatha Avenue. When the detective was asked how appellant was involved in that case, he began to respond, stating she was "identified as the driver of the-"; whereupon defense counsel objected. The objection was sustained, and no further testimony was elicited about this incident.

{¶ 71} The State contends in its brief that appellant was "implicated" as the getaway driver in these homicides. That is a complete misrepresentation of the testimony at trial.

{¶ 72} At the close of the State's case, appellant's Crim.R. 29 motion for acquittal should have been granted. Even considering the inadmissible "other acts" evidence, there was insufficient evidence to support appellant's convictions. As a result, I agree the manifest weight claim is moot.

CYNTHIA WESTCOTT RICE, J., concurs in part and dissents in part, with a Dissenting Opinion.

{¶ 73} While I agree that the trial court erred in allowing the state to introduce the other acts evidence, I would reverse the matter and remand it for a new trial, pursuant to State v. Brewer , 121 Ohio St.3d 202, 2009-Ohio-593, 903 N.E.2d 284.

{¶ 74} In Brewer , the Supreme Court held "[w]hen evidence admitted at trial is sufficient to support a conviction, but on appeal, some of that evidence is determined to have been improperly admitted, the Double Jeopardy Clauses of the United States and Ohio Constitutions will not bar retrial." Id. at syllabus. The Court noted that, in Lockhart v. Nelson , 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988), the United States Supreme Court held that " 'where evidence offered by the State and admitted by the trial court-whether erroneously or not-would have been sufficient to sustain a guilty verdict, the Double Jeopardy Clause does not preclude retrial.' " Brewer , supra , at ¶ 17, quoting Lockhart , supra , at 35, 109 S.Ct. 285. The Court in Lockhart acknowledged that, while it had previously held that double jeopardy bars retrial when an appellate court reverses a conviction based only upon evidential insufficiency, it distinguished that holding on the basis that such a reversal is equivalent to an acquittal. Id. at 39, 109 S.Ct. 285. In distinguishing between appellate court reversals based on ordinary "trial errors," the Court observed: "While the former is in effect a finding 'that the government has failed to prove its case' against the defendant, the latter 'implies nothing with respect to the guilt or innocence of the defendant,' but is simply 'a determination that [he] has been convicted through a judicial process which is defective in some fundamental respect.' " Id. at 40, 109 S.Ct. 285, quoting Burks v. United States , 437 U.S. 1, 15, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

{¶ 75} With these points in mind, I would hold the other acts evidence should have been excluded; because, however, the evidence would have been sufficient when considered in light of the improperly admitted other acts evidence, I would also hold, pursuant to Brewer and Lockhart , that the matter must be reversed and remanded for a new trial.

{¶ 76} I accordingly concur in part and dissent in part.

      Neither Carnes nor Grubbs testified at trial.

      Appellant waived oral argument and submitted an appellate brief on May 8, 2017. On July 28, 2017, the state filed a motion to file brief instanter which this court granted.

      No evidence of allegations three and four against appellant was presented during trial.

      Again, co-defendant Lashley was acquitted of all charges.


author: Wise, John, P.J.

text:
    BRIDGESTONE AMERICAS TIRE OPERATIONS, LLC, Plaintiff-Appellee v. Ronnie HARRIS, et al., Defendants-Appellants
    No. 2017 CA 00068
    Court of Appeals of Ohio, Fifth District, Stark County.
    DATE OF JUDGMENT ENTRY: January 9, 2018
    DAVID T. MOSS, JOHN R. CHLYSTA, HANNA, CAMPBELL & POWELL, 3737 Embassy Parkway, Suite 110, Akron, Ohio 44333, For Plaintiff-Appellee
    TERRENCE L. SEEBERGER, STARK & KNOLL, 3475 Ridgewood Road, Akron, Ohio 44333, For Defendants-Appellants
    JUDGES: Hon. John W. Wise, P.J., Hon. Craig R. Baldwin, J., Hon. Earle E. Wise, Jr., J.
   Wise, John, P.J.

{¶ 1} Defendants-Appellants Ronnie Harris and B & S Transport, Inc. appeal the decision of the Stark County Court of Common Pleas, which granted summary judgment against them and in favor of Plaintiff-Appellee Bridgestone Americas Tire Operations, LLC on several counterclaims in a dispute commenced over payment for automotive tires following termination of a dealership agreement between the parties. The relevant facts leading to this appeal are as follows.

Parties' Contractual Relationships

{¶ 2} Appellant B & S Transport, Inc. is a subchapter "S" corporation primarily owned by Appellant Harris. Appellants developed a tire distribution business using minority "set-aside" and related programs, particularly for supplying tires to the federal government. In 1991, the parties (B & S and appellant's predecessor) entered into a standard dealership agreement, which inter alia provided that "[appellants] shall be entitled to purchase the Products at prices in the applicable Bridgestone price lists, less any applicable discounts and allowances and subject to such further terms and conditions as may be in effect from time to time." See Agreement para. 6(a). The agreement, by its terms, was to be construed under the laws of the State of California. Id. at para. 13.

{¶ 3} The aforesaid dealership agreement was accompanied by a mutually signed letter dated April 1, 1991 that expressly amended the agreement. The letter included language wherein appellee recognized that because of the nature of appellants' business, "it is not realistic for you to perform certain of the functions performed by a typical tire dealer, such as handling warranty adjustments, or providing services to purchasers of Bridgestone products * * *." Appellee also therein stated that it proposed to proceed with orders being accepted or rejected on a "deal-specific basis," extending to appellants that same "net store prices" and "other prices, discounts and payment terms available to any other Bridgestone dealer * * *."

{¶ 4} The amending letter also stated: "At any time, and for any reason, either party may terminate this relationship upon 30 days' written notice, provided that each party shall honor all commitments incurred prior to the effective date of any such termination. * * * The intent of this approach is that our business should-and can best-grow over the long term if it is based primarily upon our developing relationship, upon whatever success we have, and upon mutual good faith." (Emphases added).

{¶ 5} Subsequent to 1991, the parties engaged in business under the aforesaid dealership agreement and amending letter, resulting in appellants obtaining numerous federal government contracts benefiting appellee for the provision of Bridgestone and Firestone brand tires.

{¶ 6} In late 2011, appellants won six contract awards, for two years each, from the Defense Logistics Agency ("DLA"), with DLA having the unilateral right to extend each contract by a year. See Ronnie Harris Affidavit, para. 18-24. Appellee was notified that B & S was bidding for the DLA contracts and was timely provided copies of all six contracts. Appellee thereupon began to furnish tires in support of these DLA contracts. Harris Affidavit, para. 23. Appellee specifically advised B & S that it was an authorized dealer to the federal government pursuant to those contracts (referred to by Bridgestone as "their GSA contract"). Harris Affidavit, para. 24. According to Harris, B & S relied upon Bridgestone's support in bidding for this DLA business. Harris Affidavit, para. 20.

{¶ 7} However, on or about February 28, 2013, appellee caused to be personally delivered to Appellant Harris a written notification that appellee had "decided to terminate B & S Transport as an authorized dealer of all Bridgestone and Firestone brand product lines * * *." The stated reasons for termination included "Bridgestone's change in distribution and go-to-market solutions strategies." See Exhibit B of Affidavit # 1 of Landers Gaines. The effective termination date was set forth as January 1, 2014.

Appellants' Federal Lawsuit

{¶ 8} On December 19, 2013, Appellants Ronnie Harris, who is African-American, and B & S Transport sued Appellee Bridgestone Americas Tire Operations in the United States District Court for the Northern District of Ohio, case number 5:13-cv-02793-SL. Appellants therein alleged that Bridgestone had racially discriminated against Harris by terminating the dealer agreement without cause and by allegedly favoring a nonminority dealer. See B & S Transport v. Bridgestone Americas Tire Opers. , 171 F.Supp.3d 669, 676 (N.D. Ohio 2016). They also asserted state-law claims, including breach of contract, breach of implied covenant of good faith, promissory estoppel, and others. Appellants sought damages and injunctive relief, arguing that appellee, even after the termination, was obligated to continue selling tires to appellants so that appellants could fulfill their tire contracts with the federal government.

{¶ 9} After an oral hearing, the federal court denied appellants injunctive relief, finding that the discrimination claim did "not present a high likelihood of success on the merits." B & S Transport v. Bridgestone Americas Tire Opers. , 2014 U.S. Dist. LEXIS 26119, 14 (Feb. 27, 2014, N.D. Ohio). Appellee also produced evidence of legitimate business reasons for the termination, reasons the federal court found "compelling." Id. at 19.

{¶ 10} After discovery, the federal court granted appellee summary judgment on appellants' discrimination claims. 171 F.Supp.3d at 680-83, 689. The federal court further declined jurisdiction over appellants' state-law claims, although we note the court addressed some of the underlying arguments appellants have raised again in the present case.

Appellee's Common Pleas Lawsuit / Appellants' Counterclaims

{¶ 11} After the federal court declined jurisdiction over the state-law claims, appellee filed an action on March 23, 2016 in the Stark County Court of Common Pleas, seeking to recover more than $1,000,000.00 that Appellants B & S and Harris allegedly owed for tires they had purchased on credit. Appellants, on April 22, 2016, counterclaimed for breach of contract, breach of the implied covenant of good faith, promissory estoppel, tortious interference with contract, antitrust, and a violation of R.C. 1353.06.

{¶ 12} On February 7, 2017, after the completion of discovery, appellee moved for summary judgment in regard to all claims, including the counterclaims. Via a judgment entry issued on March 28, 2017, the trial court denied summary judgment on appellee's claims, finding a factual dispute over amounts allegedly owed by appellants. However, the court granted summary judgment in favor of appellee on appellants' counterclaims. The trial court issued a nunc pro tunc judgment entry on April 14, 2017, adding Civ.R. 54(B) language.

{¶ 13} On April 25, 2017, appellants filed a notice of appeal. They herein raise the following three Assignments of Error:

{¶ 14} "I. THE TRIAL COURT ERRED BY GRANTING BRIDGESTONE SUMMARY JUDGMENT ON APPELLANTS' BREACH OF CONTRACT CLAIM.

{¶ 15} "II. THE TRIAL COURT ERRED BY GRANTING BRIDGESTONE SUMMARY JUDGMENT ON APPELLANTS' BREACH OF GOOD FAITH AND FAIR DEALING CLAIMS.

{¶ 16} "III. THE TRIAL COURT ERRED BY GRANTING BRIDGESTONE SUMMARY JUDGMENT ON APPELLANTS' PROMISSORY ESTOPPEL CLAIM."

Summary Judgment Standard

{¶ 17} Summary judgment proceedings present the appellate court with the unique opportunity of reviewing the evidence in the same manner as the trial court. See Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212. As such, we must refer to Civ.R. 56(C) which provides, in pertinent part: "Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. * * * A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party's favor. * * *."

{¶ 18} Pursuant to the above rule, a trial court may not enter summary judgment if it appears a material fact is genuinely disputed. The party moving for summary judgment bears the initial burden of informing the trial court of the basis for its motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. The moving party may not make a conclusory assertion that the non-moving party has no evidence to prove its case. The moving party must specifically point to some evidence which demonstrates the non-moving party cannot support its claim. If the moving party satisfies this requirement, the burden shifts to the non-moving party to set forth specific facts demonstrating there is a genuine issue of material fact for trial. Vahila v. Hall (1997), 77 Ohio St.3d 421, 429, 674 N.E.2d 1164, citing Dresher v. Burt (1996), 75 Ohio St.3d 280, 662 N.E.2d 264.

I.

{¶ 19} In their First Assignment of Error, appellants contend the trial court erred in granting summary judgment in favor of Appellee Bridgestone on appellants' breach of contract counterclaim. We disagree.

{¶ 20} California recognizes that "the vital elements of a cause of action based on contract are mutual assent (usually accomplished through the medium of an offer and acceptance) and consideration." Div. of Labor Law Enforcement v. Transpacific Trans. Co. , 69 Cal.App.3d 268, 275, 137 Cal.Rptr. 855, 859 (1977). Under California statutory law, "[t]he whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other." Cal. Civ. Code §§ 1641. As in Ohio, California courts avoid interpretations of contracts that create absurd or unreasonable results. Sequeira v. Lincoln Natl. Life Ins. Co. , 239 Cal.App.4th 1438, 1445, 192 Cal.Rptr.3d 127, 132 (2015)

{¶ 21} As noted in our recitation of the facts in this matter, the April 1991 "amending letter" states in part: "At any time, and for any reason, either party may terminate this relationship upon 30 days' written notice, provided that each party shall honor all commitments incurred prior to the effective date of any such termination." (Emphasis added).

{¶ 22} Appellants first urge that the only proper interpretation of "all commitments," which they note is not accompanied by any modifying language in the letter, is that the phrase includes appellants' anticipated commitments to its third-party customers, not just appellants' and appellee's business commitments to each other. Appellants maintain in this vein that on the effective termination date of December 31, 2013, they were still committed to the remainder of their six supply agreements with the Defense Logistics Agency ("DLA"). Appellants also challenge the trial court's reliance on the language within the letter amendment such as "we [appellee] propose to proceed with orders being accepted or rejected on a 'deal-specific' basis," and "[appellee] reserves the right to refuse or decline any orders at its sole discretion," contending there was no evidence that appellee had rejected any of the six DLA deals. Lastly, appellants question the trial court's reliance upon language in appellee's pricing supplied to B & S on the DLA tire orders, which stated: "(T)his is not a guarantee to supply. This is not a commitment to supply any of these tires." Appellants instead propose that appellee waived its right to "reject" once it began shipping tires for purposes of appellant's DLA contracts.

{¶ 23} We note Count 1 of appellants' counterclaim alleged in part that appellee breached the agreement by terminating it without "good cause," for no "valid performance-based reason," without reasonable notice, and in bad faith. Counterclaim, para. 21. But, as appellee correctly points out in response, the parties' agreement was essentially terminable at will, subject to a thirty-day notice. Appellants do not point to any language requiring additional notice, warning, or "good cause" to terminate the agreement, and we are not persuaded by appellants' restrictive interpretation of appellee's right to reject orders. Ultimately, we find appellants' reading of "all commitments" to include appellants' contracts with third-parties would unreasonably bind the parties and contradict the whole of the parties' agreement, which stated in part that Appellant B & S "is without authority to assume, create or incur any obligation or liability on behalf of Bridgestone." Agreement at para. 10. We thus find reasonable minds could only conclude that no breach of contract occurred.

{¶ 24} Finally, appellants argue that, at minimum, appellee breached the contract by failing to ship two orders for tire model # 423-831 placed, for purposes of appellants' contracts with the DLA, on July 31, 2013 and August 27, 2013, prior to the December 31, 2013 termination date. Appellee produced evidence that said model number was affected by production discontinuity in Japan. See Landers Gaines affidavit # 3. Appellee nonetheless allocated most of these tires to appellants, in addition to extending the overall termination date ten months instead of thirty days. Upon review, we find summary judgment on appellants' breach of contract counter claim on the two final orders in favor of appellee also was not erroneous.

{¶ 25} Accordingly, appellants' First Assignment of Error is overruled.

II.

{¶ 26} In their Second Assignment of Error, appellants contend the trial court erred in granting summary judgment in favor of Appellee Bridgestone on appellants' breach of good faith and fair dealing counterclaims. We disagree.

{¶ 27} In the interest of justice, we will consider whether appellee engaged in business such that it breached either or both (1) the implied covenant of good faith, and (2) an express reference to "good faith" found in the letter portion of the parties' agreement.

Implied Covenant of Good Faith-Tort Counterclaims

{¶ 28} Under California law, tort damages may not be awarded for a breach of the covenant of good faith and fair dealing absent some "special relationship" between the parties. See Martin v. U-Haul Co. of Fresno , 204 Cal.App.3d 396, 412, 251 Cal.Rptr. 17, 26 (1988). The special relationship has been found to exist in California in the "insurance context," employer/employee situations, or bank/depositor relationships. Martin at 413, 251 Cal.Rptr. 17, 26 (citations omitted). However, California courts "have consistently declined to expand liability for this tort into other types of contract-based disputes," and "[i]t is of paramount importance that the reason for the contract be 'to secure peace of mind, security, [and] future protection.' " Id. , referencing Wallis v. Superior Court (1984) 160 Cal.App.3d 1109, 1118, 207 Cal.Rptr. 123. Furthermore, our research indicates California courts, in regard to the present issues, have increasingly "refused to sanction tort remedies outside the context of an insurance policy." See Cates Construction, Inc. v. Talbot Partners , 21 Cal.4th 28, 46, 980 P.2d 407, 418, 86 Cal.Rptr.2d 855, 867 (1999), f.n. 9.

{¶ 29} Appellants in the case sub judice urge that the utilization of the letter agreement to supplement the standard dealership agreement between the parties is indicative that this was "more than an ordinary commercial relationship" from which a tort claim could be recognized. Appellants' Reply Brief at 11. However, in light of the foregoing California law, we conclude otherwise and hold the trial court did not err in granting summary judgment against appellants on the proposed tort counterclaims.

Express Covenant of Good Faith-Contract Counterclaims

{¶ 30} Appellants commence their argument by urging that in California, the law implies a covenant of good faith and fair dealing in every contract. But as noted in our recitation of the facts, supra , in this instance the parties' letter agreement included the express language that "[t]he intent of this approach is that our business should-and can best-grow over the long term if it is based primarily upon our developing relationship, upon whatever success we have, and upon mutual good faith." (Emphases added). The California Supreme Court has noted that to the extent an implied covenant claim seeks simply to invoke terms to which the parties did agree, it is superfluous. Guz v. Bechtel Nat. Inc. , 24 Cal.4th 317, 352, 8 P.3d 1089, 100 Cal.Rptr.2d 352 (2000).

{¶ 31} Accordingly, in the interest of judicial economy, we will proceed directly to a review of the issue of the express covenant of good faith.

{¶ 32} The gist of appellants' argument at this juncture is that a jury question has been presented as to whether bad faith was demonstrated by: (1) Appellee Bridgestone's termination of the agreement based upon appellee's asserted basis of a "change in distribution and go to market solutions strategy," (2) appellee's decision to terminate while appellants were in the middle of performing their own contracts with the Defense Logistics Agency (deals that appellee was well aware of), and/or (3) appellee's communication to the federal government that B & S was being "terminated" as an authorized Bridgestone dealer. Appellants additionally urge that a jury could reasonably conclude that, even assuming the termination was occasioned by a change in appellee's distribution strategy, good faith was lacking via a termination without sufficient advance warning or without offering appellants an opportunity to comply with any requested changes.

{¶ 33} "Bad faith" has been defined under California law as " * * * generally implying or involving actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake * * *, but by some interested or sinister motive[,] * * * not simply bad judgment or negligence * * *." People v. Superior Court , 248 Cal.App.4th 434, 447, 204 Cal.Rptr.3d 526, 535 (2016), internal quotations and additional citations omitted. Furthermore, California law recognizes that the scope of conduct prohibited by the covenant of good faith is circumscribed by the purposes and express terms of the contract. See Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 855, fn. 12, 57 Cal.Rptr.3d 363.

{¶ 34} In the case sub judice , in addition to the right of either party to terminate, ¶ 9(e) of the parties' dealer agreement states as follows: "The parties have considered the possibility that one or both parties * * * may incur expenses and suffer losses as a result of termination, and the parties have nevertheless agreed that neither party shall be liable for any damages by reason of a termination of this Agreement pursuant to its terms." The letter agreement also allowed appellee to decline any orders at its sole discretion and to reject orders on a "deal specific" basis.

{¶ 35} We find appellants' core argument is that appellee's claim that the basis for its decision to terminate its agreement with appellants, i.e. , appellee's claimed "change in distribution and go to market solutions strategy" was essentially specious. Appellants maintain this "basis" was largely unknown to the key Bridgestone employees who dealt with appellants and were involved in Bridgestone's government sales efforts. In support, appellants direct us to the depositions of Linda Alberstadt, John Boynton, and Jared Williams. However, upon review, whether this lack of knowledge demonstrates a weak justification for appellee's decision or simply represents lack of full communication regarding marketing plans within appellee's various departments, we conclude reasonable jurors would only find appellee acted within the bounds of the agreement and that no demonstrable lack of good faith had occurred.

{¶ 36} Finally, to the extent appellants argue that, at minimum, appellee demonstrated bad faith by failing to ship two orders for tire model # 423-831 placed, for purposes of appellants' contracts with the DLA, on July 31, 2013 and August 27, 2013, prior to the December 31, 2013 termination date, we find summary judgment as to appellants' good faith counter claim on the two final orders in favor of appellee also was not erroneous.

Conclusion

{¶ 37} We conclude the trial court properly granted summary judgment in favor of appellee on all "good faith"-based counterclaims. Accordingly, appellants' Second Assignment of Error is overruled.

III.

{¶ 38} In their Third Assignment of Error, appellants contend the trial court erred in granting summary judgment in favor of Appellee Bridgestone on appellants' promissory estoppel counterclaim. We disagree.

{¶ 39} As an initial matter, we note promissory estoppel is an equitable remedy that only comes into play when the requisites of a contract are not met. See Padula v. Wagner , 9th Dist., 2015-Ohio-2374, 37 N.E.3d 799, ¶ 43, citing Olympic Holding Co., L.L.C. v. ACE Ltd. , 122 Ohio St.3d 89, 2009-Ohio-2057, 909 N.E.2d 93, ¶ 39. Accordingly, we first find reliance on California contract law to be unnecessary for the present assigned error.

{¶ 40} Promissory estoppel is an equitable doctrine for preventing the harm resulting from reasonable reliance upon false representations. GGJ, Inc. v. Tuscarawas Cty. Bd. of Commrs. , Tuscarawas App.No. 2005AP070047, 2006-Ohio-2527, 2006 WL 1390829, ¶ 11, citing Karnes v. Doctors Hosp. (1990), 51 Ohio St.3d 139, 142, 555 N.E.2d 280. The party asserting promissory estoppel bears the burden of proving, by clear and convincing evidence, all of the elements of the claim. In re Estate of Popov , Lawrence App. No. 02CA26, 2003-Ohio-4556, 2003 WL 22017299, ¶ 30.

{¶ 41} However, similar to the Ninth District's aforesaid holding in Padula , supra , we have recognized that promissory estoppel is not available as a remedy where the legal relationship between the parties is governed by a valid and enforceable contract. See Countywide Petroleum Co. v. El-Ghazal Gasoline Servs., Inc. , 5th Dist. Stark No. 2011 CA 00120, 2012-Ohio-1009, 2012 WL 826600, ¶ 30, citing Gibson Real Estate Mgt., Ltd. v. Ohio Dept. of Admin. Servs. , Ohio Ct. Cl. No. 2005-07658, 2006-Ohio-620, 2006 WL 322304, ¶ 13, citing Warren v. Trotwood-Madison City Sch. Dist. Bd. of Educ. , 2nd Dist. Montgomery No. 17457, 1999 WL 148233. As such, we are unpersuaded by appellants' reliance on Hershberger v. Altercare, Inc. , 5th Dist. Stark No. 2006CA00167, 2007-Ohio-1452, 2007 WL 926476, which involved an at-will employee situation, rather than a formal contractual relationship. See id. at ¶ 51.

{¶ 42} We find no basis at this juncture for abruptly concluding there was no valid contractual arrangement between appellants and appellee. However, even if we were to so conclude, we would have to recognize that if an appellant cannot prove reasonable reliance, he or she cannot establish promissory estoppel. See Dunn v. Bruzzese , 7th Dist., 172 Ohio App.3d 320, 874 N.E.2d 1221, 2007-Ohio-3500, ¶ 80 (Waite, J., concurring). In the case sub judice , we would find any expectation by appellants of tire shipments after 2013 was unreasonable given the overall language of the agreements, the pricing documents language that "[t]his is not a guarantee to supply" and "[t]his is not a commitment to supply any of these tires," and the language of the termination letter stating that Bridgestone would continue to ship tires until December 31, 2013, but that on January 1, 2014, B & S Transport would no longer be a Bridgestone authorized dealer.

{¶ 43} We therefore hold the trial court did not err in granting summary judgment in favor of Appellee Bridgestone on appellants' promissory estoppel counterclaim. Appellants' Third Assignment of Error is overruled.

{¶ 44} For the reasons stated in the foregoing opinion, the judgment of the Court of Common Pleas, Stark County, Ohio, is hereby affirmed.

Baldwin, J., and Wise, Earle, J., concur.

      Appellants apparently are not pursuing their antitrust, tortious-interference, and R.C. 1353.06 claims in the present appeal.