author: FROELICH, J.

text:
    Michael SMITH, et al., Plaintiffs-Appellants v. Heather HESS, Defendant-Appellee
    No. 2018-CA-8
    Court of Appeals of Ohio, Second District, Greene County.
    Rendered on September 7, 2018
    DARREN McNAIR, Atty. Reg. No. 0075073 and CHAD M. STONEBROOK, Atty. Reg. No. 0089282, 3956 Brown Park Drive, Suite B, Hilliard, Ohio 43240, Attorneys for Plaintiffs-Appellants.
    WILBUR H. HANE, Atty. Reg. No. 0073529, 1900 Polaris Parkway, Suite 200B, Columbus, Ohio 43240, Attorney for Defendant-Appellee.
   FROELICH, J.

{¶ 1} Michael and Victoria Smith appeal from the Greene County Common Pleas Court's entry of partial summary judgment in favor of Heather Hess, the driver of a vehicle that rear-ended a vehicle that then struck the stopped vehicle occupied by the Smiths. Because there is no genuine issue of fact and, as a matter of law, the automobile accident was not a proximate cause of Michael Smith's shoulder injury, the judgment of the trial court will be affirmed.

Factual Background and Procedural History

{¶ 2} On the evening of February 13, 2016, Michael Smith ("Smith") had stopped the sedan he was driving at a traffic light in Beavercreek, Ohio. Smith's wife, Victoria, was seated in the front passenger seat. Without warning, their vehicle was struck from behind by a "hard impact." After confirming that his wife was not injured, Smith called 911. He then exited his vehicle and checked on the woman driving the car behind his, confirming that she, too, was "okay." He noticed damage to the rear bumper of his car and to the front of the second car. He did not check on a third vehicle that had struck the car behind his. The driver of the third vehicle was Heather Hess.

{¶ 3} A Beavercreek police cruiser arrived approximately 15 to 20 minutes later. Smith immediately advised the responding officer that he had an enlarged prostate and needed to urinate. The police officer told Smith to wait briefly. After a few minutes, Smith again approached the officer, repeating that he needed to urinate. Again, the officer told Smith to wait, as the officer planned to have the three drivers involved in the accident move their vehicles to a nearby gas station where he would complete the police report.

{¶ 4} Upon learning that the driver of the second vehicle did not have a valid driver's license, however, the police officer informed Smith that he could not allow the drivers to move their vehicles until a licensed driver arrived to move the second vehicle or the officer arranged to have that vehicle towed. At that point, Smith advised the police officer that he could not wait any longer to empty his bladder. According to Smith, the officer instructed him to "step over the guardrail and go down the hill to that bush and pee."

{¶ 5} During his deposition, Smith testified that the hill was "very, very steep" and covered with "ice[,] with snow over the ice." The bush was "[m]aybe a third of the way down" the hillside. Because no restrooms were available in the immediate vicinity, Smith stepped over the guardrail and tried to get my footing because, like I said, it was snow-covered ice. Started down the hill and I started slipping, and kind of had no control. It was like I basically started running down the hill. I was trying to get my footing. I just, you know, was just trying to grasp the ground, you know, to hang on. And I even grabbed some small trees that were growing up on the side of the hill, trying to grab them to stop, and I pulled them out of the ground. And I just kept going. And I tripped and went flying through the air more or less down the hill and landed in the ravine, the upward slope of the ravine down at the bottom.

{¶ 6} Smith testified that he landed 200-250 feet from the guardrail, with his right shoulder "[k]ind of jammed * * * into the embankment," where he lost consciousness. When he regained consciousness, the police officer was calling down to him; Smith urinated and made his way back up the hillside, cradling his arm in the front of his coat. The police officer assisted Smith with the last 15-20 feet and called an ambulance that transported Smith to a medical center, where he was diagnosed with a fractured right humerus. After keeping his right arm in a sling for nearly a month, Smith underwent surgery on March 8, 2016, to have a plate and 12 screws inserted in his right arm to affix the humerus bone near his shoulder.

{¶ 7} The Smiths filed a complaint against Hess, seeking damages for Michael Smith's personal injuries and related losses and Victoria Smith's loss of consortium. Hess moved for summary judgment, arguing that the automobile accident she allegedly caused was not the proximate cause of Smith's injuries, which instead resulted from Smith's own negligence in falling down the hillside after the accident. In support of her motion, she attached a copy of the transcript of Smith's deposition testimony. The Smiths opposed Hess's motion, urging that Hess's negligence was a proximate cause of Smith's injuries because the automobile accident set in motion "a natural and continuous sequence [that] produce[d] an injury without which the result would not have occurred."

{¶ 8} The trial court granted Hess's motion in part, entering summary judgment "in favor of [Hess] as to all claims arising from Plaintiff Michael Smith's slip and fall on a hillside adjacent to the scene of the subject car accident," but denying summary judgment as to any other claims arising from that accident. Pursuant to Civ.R. 54(B), the trial court expressly determined that there was "no just cause for delay," making the summary judgment decision immediately appealable.

{¶ 9} The Smiths appeal from that judgment, setting forth five assignments of error:

1) The trial court erred in ruling that walking down the hill was an intervening superseding cause of the shoulder injury.
2) The trial court erred by concluding walking down a hill broke the ca[us]al chain between the car accident and the shoulder injury.
3) The trial court erred by concluding that the injury, in light of all the circumstances, was reasonably foreseeable [sic] by the tortfeasor.
4) The trial court erred by granting partial summary judgment because reasonable minds could differ on the issue of proximate cause.
5) The trial court erred by stating that Plaintiffs have not submitted any evidence in opposition to the Motion for Summary Judgment, and rests [sic] merely on legal arguments.

Standard Applicable to Motions for Summary Judgment

{¶ 10} Pursuant to Civ.R. 56(C), summary judgment is proper when (1) there is no genuine issue as to any material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds, after construing the evidence most strongly in favor of the nonmoving party, can only conclude adversely to that party. Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998). The moving party carries the initial burden of affirmatively demonstrating that no genuine issue of material fact remains to be litigated. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798 (1988) ; Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). To this end, the movant must be able to point to evidentiary materials of the type listed in Civ.R. 56(C) that a court is to consider in rendering summary judgment. Dresher at 292-293, 662 N.E.2d 264.

{¶ 11} Once the moving party satisfies its burden, the nonmoving party may not rest upon the mere allegations or denials of its pleadings. Id. ; Civ.R. 56(E). Rather, the burden then shifts to the nonmoving party to respond, with affidavits or as otherwise permitted by Civ.R. 56, setting forth specific facts that show that there is a genuine issue of material fact for trial. Id. Throughout, the evidence must be construed in favor of the nonmoving party. Id. ; Civ.R. 56(C).

{¶ 12} Appellate review of the trial court's ruling on a summary judgment motion is de novo. Schroeder v. Henness , 2d Dist. Miami No. 2012 CA 18, 2013-Ohio-2767, 2013 WL 3356564, ¶¶ 38-42, citing Helton v. Scioto Cty. Bd. of Commrs., 123 Ohio App.3d 158, 162, 703 N.E.2d 841 (4th Dist.1997).

Law regarding Proximate Cause

{¶ 13} A claim for personal injuries requires the existence of a duty, the defendant's breach of that duty, and injury or damages that are proximately caused by that breach. Wallace v. Ohio Dept. of Commerce, 96 Ohio St.3d 266, 2002-Ohio-4210, 773 N.E.2d 1018, ¶ 22. The "proximate cause" element ordinarily is established " 'where an original act is wrongful or negligent and, in a natural and continuous sequence, produces a result [that] would not have taken place without the act.' " Heard v. Dayton View Commons Homes , 2d Dist. Montgomery, 2018-Ohio-606, 106 N.E.3d 327, ¶ 12 ; see also Clinger v. Duncan, 166 Ohio St. 216, 222, 141 N.E.2d 156 (1957).

{¶ 14} "It is a well-established principle of tort law that an injury may have more than one proximate cause." Leasure v. UVMC , 2d Dist. Miami No. 2016-CA-21, 2017-Ohio-7196, 2017 WL 3446986, ¶ 21, quoting Murphy v. Carrollton Mfg. Co., 61 Ohio St.3d 585, 587, 575 N.E.2d 828 (1991). "[W]hen two factors combine to produce damage * * *, each is a proximate cause." Id. , quoting Murphy at 588, 575 N.E.2d 828 ; see also Garbe v. Halloran , 150 Ohio St. 476, 83 N.E.2d 217 (1948), paragraph one of the syllabus ("Concurrent negligence consists of the negligence of two or more persons concurring, not necessarily in point of time, but in point of consequence, in producing a single indivisible injury.").

{¶ 15} Generally, where proximate cause has been established, "the fact that some other act unites with the original act to cause injury does not relieve the initial offender from liability." Clinger at 222, 141 N.E.2d 156. "In order to relieve a party of liability, a break in the chain of causation must take place." Berdyck v. Shinde , 66 Ohio St.3d 573, 584, 613 N.E.2d 1014 (1993). Such a break occurs "when there intervenes between an agency creating a hazard and an injury resulting therefrom another conscious and responsible agency which could or should have eliminated the hazard." Id. at 584-85, 613 N.E.2d 1014, citing Hurt v. Charles J. Rogers Transp. Co. , 164 Ohio St. 323, 130 N.E.2d 824 (1955), paragraph one of the syllabus; Thrash v. U-Drive-It Co. , 158 Ohio St. 465, 110 N.E.2d 419 (1953), paragraph two of the syllabus. "However, the intervening cause must be disconnected from the negligence of the first person and must be of itself an efficient, independent, and self-producing cause of the injury." Berdyck at 585, 613 N.E.2d 1014.

{¶ 16} " 'Whether an intervening act breaks the causal connection between negligence and injury depends upon whether that intervening cause was reasonably foreseeable by the one who was guilty of the negligence.' " (Emphasis deleted.) R.H. Macy & Co., Inc. v. Otis Elevator Co. , 51 Ohio St.3d 108, 110, 554 N.E.2d 1313 (1990), quoting Mudrich v. Standard Oil Co. , 153 Ohio St. 31, 39, 90 N.E.2d 859 (1950). "[T]he test to be used to determine whether the intervening act was foreseeable and therefore a consequence of the original negligent act or whether the intervening act operates to absolve the original actor * * * 'is whether the original and successive acts may be joined together as a whole, linking each of the actors as to the liability, or whether there is a new and independent act or cause which intervenes and thereby absolves the original negligent actor.' " Leibreich v. A.J. Refrigeration, 67 Ohio St.3d 266, 269, 617 N.E.2d 1068 (1993), quoting Cascone v. Herb Kay Co., 6 Ohio St.3d 155, 160, 451 N.E.2d 815 (1983).

{¶ 17} As elsewhere stated by the Ohio Supreme Court:

A rule of general acceptance is that, where the original negligence of the defendant is followed by the independent act of a third person which directly results in injurious consequences to plaintiff, defendant's earlier negligence may be found to be a proximate cause of those injurious consequences, if, according to human experience and in the natural and ordinary course of events, defendant could reasonably have foreseen that the intervening act was likely to happen.
Or, stating the proposition a little differently, the connection between the defendant's negligence as a proximate cause of an injury is not broken, if an intervening event is one which might in the natural and ordinary course of things be anticipated as reasonably probable, and the defendant's negligence remains an important link in the chain of causation.

(Citations omitted.) Taylor v. Webster , 12 Ohio St.2d 53, 56-57, 231 N.E.2d 870 (1967).

Alleged Errors regarding Intervening/Superseding Cause, Break in Chain of Causation, and Foreseeability

{¶ 18} The Smiths' first, second and third assignments of error argue that the trial court erred by finding that Smith's act of walking down the hill "was an intervening superseding cause" of his shoulder injury that "broke the ca[us]al chain" between the automobile accident and that injury, and by finding that such injury was not "reasonably foreseeable" by Hess. Given the overlapping concepts presented by these arguments, we will address the Smiths' first three assignments of error collectively.

{¶ 19} The Smiths concede that Smith's shoulder was injured not by the impact from the rear-end collision that Hess allegedly caused, but as a result of Smith's fall down an icy hillside following the accident. They nonetheless maintain that such injury was a "reasonably foreseeable" consequence of the chain of causation put in motion by Hess's alleged negligence, such that any subsequent negligence of Smith or others that may have contributed to the injury did not extinguish Hess's liability. We disagree.

{¶ 20} Although the Smiths assert that "[i]t is certainly foreseeable that an individual with prostate problems would have to urinate" after a traffic accident, the facts do not support a conclusion that Hess could have "anticipated as reasonably probable" that an occupant of one of the vehicles involved in the subject crash would have such problems and thereafter would attempt to traverse a steep, ice-covered slope next to the roadway in order to empty his bladder. See Taylor , 12 Ohio St.2d at 57, 231 N.E.2d 870. The situation here is not analogous to those in the cases the Smiths cite as support for their position. For example, Grange Mut. Cas. Co. v. Fleming , 8 Ohio App.3d 164, 456 N.E.2d 816 (10th Dist.1982) involved a three-car collision in which the negligence of both the first and third drivers was alleged to have contributed to the crash that injured the driver of the second car. Under those facts, the court found that "reasonable minds could reach different conclusions" as to whether the two defendants' actions had combined to cause the plaintiff's injuries. Id. at 166, 456 N.E.2d 816. The injuries in Fleming were the direct result of a single impact, not a separate event that occurred after that impact.

{¶ 21} In another automobile accident case on which the Smiths rely, the plaintiff was injured after a non-party driver struck her car and "turned it crosswise on [a] bridge," where it was struck by a second vehicle several seconds later. Garbe , 150 Ohio St. at 477, 83 N.E.2d 217. There, the Supreme Court found that the non-party was responsible for placing the plaintiff's car "in a zone of danger" on the bridge "so close in point of time as not to break the chain of causation." Id. at 481, 83 N.E.2d 217. Again, the facts regarding Smith's injuries are not comparable.

{¶ 22} Likewise, with respect to a vehicular collision where this Court reversed a grant of summary judgment in favor of the defendant-driver, we based that reversal on our determination that "reasonable minds could conclude that the chain of events set in motion by the acts or omissions of [the defendant] * * * unfolded in rapid succession in a continuous and unbroken fashion , with a result that the causal connection between that act or omission and [the plaintiff's] injuries was not broken by" the plaintiff's own negligence. (Emphasis added.) Crosby v. Radenko , 2d Dist. Montgomery No. 24343, 2011-Ohio-4662, 2011 WL 4124367, ¶ 56. The circumstances of the instant matter are readily distinguishable from those in Crosby . Here, Smith was not injured in the location where his car came to rest, within seconds after the impact allegedly caused by Hess. Instead, Smith had exited his car, surveyed the accident scene, waited several minutes for the police to arrive, and spoken multiple times with the responding police officer before, at the police officer's urging, stepping over the guardrail and attempting to make his way down what he knew to be a "very steep" and ice-covered hillside.

{¶ 23} Under this factual scenario, we conclude, as a matter of law, that reasonable minds could not find that the chain of events Hess set in motion "unfolded in rapid succession in a continuous and unbroken fashion." See id. To the contrary, Smith's own conduct in choosing to brave the icy hillside was a "new and independent act" that took him from any "zone of danger" created by Hess and introduced risk of his own making, thus interrupting any sequence set in motion by Hess's alleged negligence. See Leibreich, 67 Ohio St.3d at 269, 617 N.E.2d 1068 ; Garbe at 481, 83 N.E.2d 217. This case bears a closer resemblance to the facts of Slayton v. Tri-County Mtge. & Invest. , 7 Ohio Misc. 13, 218 N.E.2d 643 (C.P.1966), where the plaintiff's decedent was struck and killed by a second driver while walking along the roadway an hour after the defendant struck his vehicle. In Slayton , the trial court determined that the "hazard" created by the first driver "was static, not active, at the time of the intervening conduct" of the second driver and the decedent himself. Id. at 16, 218 N.E.2d 643. "The 'dust' had long since settled" before the other parties' conduct "created an altogether new hazard" which caused the decedent's death. Id.

{¶ 24} The same analysis applies in this case. We find that Smith's intervening act superseded Hess's alleged negligence, see id. , and also was not "reasonably foreseeable" by Hess. See R.H. Macy & Co. , 51 Ohio St.3d at 110, 554 N.E.2d 1313. The trial court did not err in its findings to that effect. The Smiths' first, second and third assignments of error therefore are overruled.

Alleged Error regarding Proximate Cause as Jury Question

{¶ 25} In their fourth assignment of error, the Smiths contend that the trial court erred by not deferring the issue of proximate cause for jury decision. Ordinarily, proximate cause is a question of fact for the jury. Westfall v. Lemon , 4th Dist. Washington No. 14CA12, 2015-Ohio-384, 2015 WL 459283, ¶ 23, citing Strother v. Hutchinson, 67 Ohio St.2d 282, 288, 423 N.E.2d 467 (1981), citing Clinger, 166 Ohio St. 216, 141 N.E.2d 156. Nevertheless,

where no facts are alleged justifying any reasonable inference that the acts or failure of the defendant constitute the proximate cause of the injury, there is nothing for the jury [to decide], and, as a matter of law, judgment must be given for the defendant.

Id. , quoting Kemerer v. Antwerp Bd. of Edn., 105 Ohio App.3d 792, 796, 664 N.E.2d 1380 (3d Dist.1995) and Case v. Miami Chevrolet Co., 38 Ohio App. 41, 45-46, 175 N.E. 224 (1st Dist.1930) ; see also Byrd v. Goldsmith , 1st Dist. Hamilton No. C-74520, 1975 WL 181982, at *1 (Sept. 22, 1975) ("[I]n order for a jury question to be presented on the issue of proximate cause , * * * there must be sufficient evidence that the negligence of [the defendant], if indeed there was negligence, probably was the cause of the injury and subsequent damage claimed.") (Emphasis sic.); Vermett v. Fred Christen & Sons Co., 138 Ohio App.3d 586, 612, 741 N.E.2d 954 (6th Dist.2000) ("While proximate cause is often a jury question, summary judgment is proper on this issue when appellant has failed to meet his burden to produce evidence to challenge unfavorable evidence already in the record."). Where "reasonable minds could reach but one conclusion on that issue and the issue would be unfavorable to the plaintiff," the trial court is not required to submit the issue of proximate cause to a jury. (Emphasis sic.) Byrd at *1.

{¶ 26} In light of our foregoing analysis of the issues of foreseeability, intervening and superseding cause, and breaking the chain of causation, we conclude that the trial court did not err by granting partial summary judgment rather than reserving the issue of proximate causation for decision by a jury. Having concluded that reasonable minds could not differ regarding the effect of Smith's actions on the chain of events allegedly set in motion by Hess, see ¶ 23, above, we likewise overrule the Smiths' fourth assignment of error.

Alleged Error regarding Evidence Presented in Opposition

{¶ 27} The Smiths' final assignment of error asserts that the trial court erred by stating that the Smiths had submitted no evidence in opposition to Hess's motion for summary judgment, but instead relied solely on "legal arguments." The trial court was not mistaken in observing that "the only Rule 56(C) evidence" before it for purposes of Hess's motion was "the transcript of the deposition of Plaintiff Michael Smith," which in fact was "submitted" by Hess as an exhibit to her motion, not as an attachment to the Smiths' opposing memorandum. Additionally, while the Smiths' opposing memorandum in the trial court does contain references to Smith's deposition testimony, they cited that evidence not to contest the facts as laid out by Hess, but as support for their arguments regarding the legal significance of the undisputed facts. The record does not support a conclusion that the trial court erred in its characterization of the evidence before it for purposes of the judgment at issue.

{¶ 28} Moreover, our de novo review indicates that the trial court reached its decision by applying the applicable law to the relevant facts of record, regardless of who "submitted" that evidence. Significantly, Appellants have identified no specific mistakes or omissions alleged to afflict the trial court's recitation of the facts of this matter, nor have we discerned any instances where the trial court inaccurately construed the evidence. Because the Smiths have failed to challenge any of the trial court's specific statements as to the underlying facts, any error by the trial court in describing the evidence before it was harmless. Appellants' fifth assignment of error is overruled.

Conclusion

{¶ 29} The judgment of the trial court will be affirmed.

DONOVAN, J. and HALL, J., concur.

      Presumably the Appellants intended to assert that the trial court erred by finding that the injury was not reasonably foreseeable.

      We need not consider the parties' allusions to possible negligence by the police officer, nor the prospect that the second driver's act of driving without a valid license also may have contributed to the circumstances that led Smith to venture down the icy slope.


source: Caselaw Access Project

author: Zayas, Judge.

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee, v. Clifford RUCKER, Defendant-Appellant.
    NO. C-170488
    Court of Appeals of Ohio, First District, Hamilton County.
    Date of Judgment Entry on Appeal: September 7, 2018
    Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ernest W. Lee, Jr., Assistant Prosecuting Attorney, for Plaintiff-Appellee,
    Bryan R. Perkins, Cincinnati, for Defendant-Appellant.
    OPINION.
   Zayas, Judge.

{¶ 1} In 2011, defendant-appellant Clifford Rucker was convicted, after a jury trial, of unlawful sexual conduct with a minor, in violation of R.C. 2907.04(A). He was sentenced to five years in prison. We affirmed his conviction on appeal, but noted that the trial court had incorrectly classified Rucker as a Tier III sex offender under Ohio's version of the Adam Walsh Act ("AWA"). We remanded the cause for the trial court to correct its judgment entry to reflect that Rucker was a Tier II sex offender. See State v. Rucker , 1st Dist. Hamilton No. C-110082, 2012-Ohio-185, 2012 WL 171143 (" Rucker I "). The trial court did not carry out our order on remand.

{¶ 2} On January 8, 2015, after Rucker was released from prison, he filed a pro se "Motion for Re-Sentencing Based on Void Judgment/and or Motion to Dismiss the Defendant's Classification as Tier Sex Offender or Child-Victim Offender * * *." Rucker's counsel filed an "Amended Motion for Relief from Sanctions Imposed Pursuant to Sentence," arguing that the trial court had failed to properly notify Rucker of postrelease control, that Rucker's release from prison had deprived the court of authority to correct the postrelease-control notification, and that therefore, Rucker could not be subject to postrelease control. Rucker also argued that because he had been released from prison, the trial court was without authority to classify him as a Tier II sex offender "pursuant to the principles applicable to" postrelease control.

{¶ 3} The trial court overruled Rucker's amended motion. The court found that postrelease control had been properly imposed. The court also determined that it was bound by our order of remand to modify Rucker's sex-offender classification to Tier II. The court stated in its entry overruling the motion that "Rucker's classification will be modified under a separate entry to Tier II." The trial court did not journalize a separate entry. Rucker appealed.

{¶ 4} In State v. Rucker , 1st Dist. Hamilton No. C-150434, 2016-Ohio-5111, 2016 WL 4063866, appeal not allowed , 148 Ohio St.3d 1411, 2017-Ohio-573, 69 N.E.3d 751 (" Rucker II "), we held that the postrelease-control notification was proper. We noted that there was no order in place requiring him to register as a sex offender, and we remanded the cause for the trial court to consider whether it had authority to carry out our remand order in the first appeal and impose Tier II registration requirements on Rucker after he had been released from prison.

{¶ 5} After a hearing on remand, the trial court entered an order stating, "On remand from the First District Court of Appeals in the case No. C-110082, the court vacates the defendant's Tier III designation from the court's sentencing entry dated January 31, 2011. The defendant is a Tier II offender." Rucker has appealed.

{¶ 6} Before reaching the merits of Rucker's appeal, we must determine whether we have jurisdiction over it. Our jurisdiction is limited to the review of final orders. Ohio Constitution, Article IV, Section 3 (B)(2); R.C. 2505.03 ; see State v. Sims , 2017-Ohio-8379, 99 N.E.3d 1056, ¶ 5 (1st Dist.) ; State v. McLendon , 1st Dist. Hamilton No. C-160267, 2017-Ohio-1399, 2017 WL 1373886, ¶ 4. If the appeal is taken from an order that is not a final appealable order, it must be dismissed. Sims at ¶ 5 ; McLendon at ¶ 4.

{¶ 7} In State v. Hildebrand , 1st Dist. Hamilton No. C-150046, 2018-Ohio-2962, 2018 WL 3608227, ¶ 6, we stated,

The registration and verification requirements of the AWA are punitive. State v. Williams , 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, ¶ 16. They are part of the penalty imposed for the offense. State v. Thomas , 2016-Ohio-501, 56 N.E.3d 432, ¶ 7 (1st Dist.) ; State v. Lawson , 1st Dist. Hamilton Nos. C-120067 and C-120077, 2012-Ohio-5281 [2012 WL 5830593], ¶ 12 ; State v. Jackson , 1st Dist. Hamilton No. C-110645, 2012-Ohio-3348 [2012 WL 3060451], ¶ 6. "[A] sentence is a sanction or combination of sanctions imposed for an individual offense, and incarceration and postrelease control are types of sanctions that may be imposed and combined to form a sentence." State v. Holdcroft , 137 Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 6. Tier classification under the AWA is a type of sanction that may be imposed for an offense. See Williams .
A trial court speaks through its journal entries. Hernandez v. Kelly , 108 Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d 301, ¶ 30 ; State v. Lewis , 1st Dist. Hamilton No. C-160909, 2018-Ohio-1380 [--- N.E.3d ----], ¶ 9 ; State v. Kirkpatrick , 2017-Ohio-7629, 97 N.E.3d 871, ¶ 16 (1st Dist.), citing State v. Bonnell , 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 29 ; State v. Hafford , 1st Dist. Hamilton No. C-150578, 2016-Ohio-7282 [2016 WL 5930203], ¶ 10.

{¶ 8} A sanction is imposed by the sentencing entry. State v. Halsey , 2016-Ohio-7990, 74 N.E.3d 915, ¶ 26 (12th Dist.) (holding that the inclusion of the defendant's Tier III sex-offender classification in the sentencing entry was mandatory and that its omission rendered the sex-offender classification void); Bonnell at ¶ 299.

{¶ 9} We have held that a judgment convicting the defendant of an offense that subjects him to the AWA's registration and notification requirements must accurately reflect his tier classification. Rucker I at ¶ 31 and 48. We affirmed our holding that the proper tier classification must be included in the judgment of conviction in Rucker II at ¶ 11. Rucker's tier classification is part of the sentence for his offense, and therefore, it must be included in the entry of conviction and sentence. See id. ; Hildebrand , 1st Dist. Hamilton No. C-150046, 2018-Ohio-2962 ; State v. Arszman , 1st Dist. Hamilton No. C-160698, 2017-Ohio-7581, 2017 WL 4049583.

{¶ 10} "A judgment of conviction is a final order subject to appeal under R.C. 2505.02 when it sets forth (1) the fact of the conviction, (2) the sentence, (3) the judge's signature, and (4) the time stamp indicating entry upon the journal by the clerk. ( Crim.R. 32(C), explained; State v. Baker , 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, modified.)" State v. Lester , 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, paragraph one of the syllabus. All of these requirements must be contained in a single document. Sims , 2017-Ohio-8379, 99 N.E.3d 1056, at ¶ 6, citing Baker at ¶ 17, and State v. Daniels , 1st Dist. Hamilton No. C-140242, 2014-Ohio-5160, 2014 WL 6603128, ¶ 7. The "defendant is entitled to an order that conforms to Crim.R. 32(C)." Lester at ¶ 15.

{¶ 11} The trial court's order purporting to classify Rucker as a Tier II offender is not final and appealable, because it does not meet the requirement that the judgment of conviction must be a single document that includes the fact of conviction, the sentence, the judge's signature, and the time stamp. Therefore, the appeal is dismissed.

Appeal dismissed.

Cunningham, P.J., and Myers, J., concur.


author: Robb, P.J.

text:
    KIRK EXCAVATING & CONSTRUCTION, INC., Plaintiff-Appellant, v. RKJ ENTERPRISES, LLC, dba At Your Service et al., Defendants-Appellees.
    No. 18 CA 0926
    Court of Appeals of Ohio, Seventh District, Carroll County.
    Dated: September 12, 2018
    Atty. James. R. Havens, Atty. Adam M. Schwartz, Atty. Wesley W. Gillilan, Havens Limited, 141 East Town Street, Suite 200, Columbus. Ohio 43215, for Plaintiff-Appellant and
    Atty. J. Kevin West, Atty. Alana Tanoury, Steptoe & Johnson, PLLC, The Huntington Center, Suite 2200, 41 South High Street, Columbus, Ohio 43215, for Defendants-Appellees, Chesapeake Exploration, LLC et al., Atty. Richard Protiva, Atty. Thomas Hill, 6075 Silica Road, Suite A., Austintown, Ohio 44515, for Defendants-Appellees, Eric Petroleum.
    BEFORE: Carol Ann Robb, Cheryl L. Waite, Kathleen Bartlett, Judges.
    OPINION AND JUDGMENT ENTRY
   Robb, P.J.

{¶ 1} Plaintiff-Appellant Kirk Excavating & Construction, Inc. appeals the decision of Carroll County Common Pleas Court granting Defendants-Appellees Chesapeake Exploration, LLC; CHK UTICA, LLC; TOTAL E & P USA, INC.; EnerVest Operating, LLC; and Pelican Energy, LLC's motion to dismiss Appellant's second amended complaint for failure to state a claim upon which relief could be granted. Defendant Eric Petroleum also filed a motion to dismiss, which was granted. Appellant however, did not appeal that decision; Appellant admits it is not appealing the dismissal of Eric Petroleum. Consequently, although Eric Petroleum filed a brief in this case, we have no jurisdictional power to address the ruling dismissing Eric Petroleum.

{¶ 2} This case involves a mechanic's lien. Appellant sent an affidavit to the Carroll County Recorder's Office for purposes of perfecting a mechanic's lien against Appellees. The affidavit was returned to Appellant because it allegedly did not comply with R.C. 1311.06. The issue in this case is what does the word "file" mean for purposes of R.C. 1311.06. Appellant contends delivery of the affidavit to the recorder's office constituted filing. Appellant's argument tries to draw a distinction between filing and recording and equates filing with delivery. Appellees assert delivery is not filing and the recorder's office was permitted to refuse the affidavit because the affidavit failed to comply with the requirements in R.C. 1311.06.

{¶ 3} Appellant's arguments fail. Although the statute uses both the word "file" and the word "record," and these words mean two different things, filing requires more than mere delivery. Furthermore, the recording statutes indicate the recorder's office can reject instruments for recording. Thus, the trial court's ruling is correct.

Statement of the Facts and Case

{¶ 4} Appellant claims it was hired to perform oil and gas construction work in Carroll County, Ohio. It was the subcontractor and Defendant RKJ Enterprises, LLC was the general contractor. Appellant asserts Appellees are the "holder and owner of an oil and gas lease and leasehold estate." It claims that from April 21, 2014 through May 12, 2014 it did work for RKJ Enterprises and submitted an invoice for $332,320, which was never paid. Sometime in July 2014, but no later than July 23, 2014, Appellant sent an affidavit for mechanic's lien to the Carroll County Recorder's Office. The recorder's office returned the affidavit stating the legal description of the property appeared to be incorrect and the legal description requires a township name, township number, range number, and section number.

{¶ 5} On December 8, 2014 Appellant's second affidavit for mechanic's lien was recorded. It is undisputed that this second affidavit was untimely and thus, it did not create a valid lien. Pursuant to R.C. 1311.06 the affidavit for a lien on oil and gas wells under R.C. 1311.021 must be filed for record within 120 days from the date on which the last labor or work was performed. This meant the affidavit was required to be recorded sometime in September 2014. The second affidavit, recorded in December 2014, was clearly recorded beyond the 120 day time limit.

{¶ 6} Appellant filed a complaint against Appellees and Defendant RKJ Enterprises, dba At Your Service and AYS Oilfield, in Franklin County Common Pleas Court in 2014 asserting breach of contract, unjust enrichment, quantum meruit, and foreclosure. The foreclosure count was to enforce the mechanic's lien. The complaint was amended twice.

{¶ 7} The Franklin County Common Pleas Court transferred the matter to Carroll County Common Pleas Court in September 2015. Thereafter, Appellees filed motions to dismiss the second amended complaint for failure to state a claim upon which relief could be granted. As to the foreclosure count, Appellees argued the face of the complaint indicated Appellant did not have a valid mechanic's lien.

{¶ 8} A pretrial was held on November 10, 2015. Appellant agreed to dismiss its claims for breach of contract, unjust enrichment, and quantum meruit against all defendants except RKJ Enterprises. 12/7/15 J.E. Thus, the claim remaining against Appellees was the foreclosure of the mechanic's lien. 12/7/15 J.E. The judgment entry indicated all claims were still pending against Defendant RKJ Enterprises. 12/7/15 J.E.

{¶ 9} On February 6, 2018 the trial court granted Appellees' motion to dismiss. The trial court indicated, given the facts in the complaint, Appellant was required to file an affidavit for record with the Carroll County Recorder's Office by September 12, 2014 to perfect a valid mechanic's lien. 2/6/18 J.E. It explained that although Appellant initially presented an affidavit of mechanic's lien to the Carroll County Recorder's Office on July 23, 2014, the affidavit was properly rejected for failure to provide an accurate legal description of the property to be encumbered by the lien. 2/6/18 J.E. Although the Carroll County Recorder's Office sent Appellant a notice of the rejection, Appellant did not file a corrected affidavit until December 8, 2014, which was 210 days after the last work performed and thus, was untimely. 2/6/18 J.E. As to Eric Petroleum, the trial court also indicated the affidavit of mechanic's lien was invalid because it referred to Eric Petroleum as Epic Petroleum. 2/6/18 J.E. That reason alone was sufficient to dismiss Eric Petroleum from the foreclosure action. 2/6/18 J.E. Therefore, as to Appellees and Eric Petroleum, the trial court dismissed the second amended complaint with prejudice and found there was no just reason for delay. 2/6/18 J.E.

{¶ 10} Thereafter, Appellant dismissed all claims against RKJ Enterprises LLC without prejudice. 3/5/18 Notice of Partial Dismissal. The following day, Appellant filed a notice of appeal from the trial court's February 6, 2018 ruling.

Assignment of Error

"The trial court mistakenly granted the Appellee's Motion to Dismiss the foreclosure claim on the grounds that the mechanics' lien was invalid."

{¶ 11} The trial court granted Appellee's motion to dismiss for failure to state a claim upon which relief could be granted. A motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Civ.R. 12(B)(6) is procedural and tests the sufficiency of the complaint.

State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs. , 65 Ohio St.3d 545, 605 N.E.2d 378 (1992). In ruling on a motion to dismiss pursuant to Civ.R. 12(B)(6), the court must construe the complaint in the light most favorable to the plaintiff, presume all factual allegations in the complaint are true, and make all reasonable inferences in favor of the plaintiff. Mitchell v. Lawson Milk Co. , 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988). Attachments to the complaint are considered part of the complaint for all purposes. Mavroudis v. Ohio Dept. of Rehab. & Correction , 10th Dist. No. 17AP-430, 2017-Ohio-8649, 2017 WL 5593769, ¶ 8, citing Civ.R. 10(C). Our standard of review on a Civ.R. 12(B)(6) motion to dismiss is de novo. Perrysburg Twp. v. Rossford , 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5.

{¶ 12} The issue in this case is what the word "file" means in the context of R.C. 1311.06 and R.C. 1311.021. R.C. 1311.021 specifically governs liens upon gas and oil wells. It states:

Every person who performs any labor or work upon or furnishes material for digging, drilling, boring, operating, completing, or repairing, any well drilled or constructed for the production of oil or gas or any injection well which furthers the production of oil and gas or which disposes of waste products generated by oil and gas operations, or for altering, repairing, or constructing any oil derrick, oil tank, or leasehold production pipe line by virtue of a contract, express or implied, with the owner or part owner, or the owner's or part owner's authorized agent, of any oil and gas lease or leasehold estate or, in the event there is no lease or estate, any mineral estate, and every subcontractor, laborer, and material supplier who performs any labor or work or furnishes material to an original contractor or any subcontractor, in carrying forward, performing, or completing the contract, has a lien to secure the payment thereof upon the oil and gas lease or leasehold estate or, in the event there is no lease or estate, any mineral estate, the oil or gas produced therefrom and the proceeds thereof, and upon all material located thereon or used in connection therewith.

R.C. 1311.021(A).

R.C. 1311.06 indicates the procedure to secure a lien:

(A) Any person, or the person's agent, who wishes to avail self of sections 1311.01 to 1311.22 of the Revised Code, shall make and file for record in the office of the county recorder in the counties in which the improved property is located, an affidavit showing the amount due over and above all legal setoffs, a description of the property to be charged with the lien, the name and address of the person to or for whom the labor or work was performed or material was furnished, the name of the owner, part owner, or lessee, if known, the name and address of the lien claimant, and the first and last dates that the lien claimant performed any labor or work or furnished any material to the improvement giving rise to the claimant's lien. If the affidavit is recorded, the omission or inaccuracy of any address in the affidavit does not affect its validity. The affidavit may be verified before any person authorized to administer oaths, whether agent for the owner, part owner, lessee, lien claimant, or an interested or other party.

R.C. 1311.06(A).

{¶ 13} The affidavit is required to be filed for record within 120 days from the date the last labor or work was performed. R.C. 1311.06(B)(2) (setting forth the time period for the lien arising under R.C. 1311.021 ).

{¶ 14} Appellant contends the foreclosure claim on the mechanic's lien survives the Civ.R. 12(B)(6) motion because the face of the complaint indicated it caused the affidavit to be delivered to the Carroll County Recorder's Office within 120 days of the last date worked. It argues that constitutes filing the affidavit pursuant to R.C. 1311.06 and R.C.1311.021. Appellant contends the issue of whether the affidavit complied with the statute is something that could be addressed upon remand. It contends the case should not have been dismissed so early.

{¶ 15} The focus is on the language in R.C. 1311.06(A)"file for record"; the statute states the person seeking a lien "shall make and file for record" an affidavit in the county recorder's office where the real property improved is located. Appellant contends recording and filing are two separate actions and the language of R.C. 1311.06 indicates as such.

{¶ 16} Appellant is correct that filing and recording are two separate things when it involves the recorder's office. For instance, R.C. 1311.06(E) states the recorder is to "indorse upon every affidavit the date and hour of its filing, and record it in the official records." The use of the words filing and record indicate they are two separate acts.

{¶ 17} Chapter 317 of the Revised Code, which governs the county recorder's offices also uses versions of the words "file" and "record" separately indicating they are two separate acts. R.C. 317.09(A)(1)(2) ("If a duplicate copy of a notice of a lien or a certificate of discharge or release of a lien is provided, the county recorder shall endorse on the copy the date and hour that the notice or certificate was received for filing and recording and shall return by copy. * * * When a notice of lien in favor of the United States is filed , the county recorder shall record the lien in the official records." (Emphasis added.) ); R.C. 317.111 (language indicating no instrument "shall be received for record or filing by the county recorder." (Emphasis added.) ); R.C. 317.112(B)(3) ("The notice that is imparted by the recording or filing of an instrument is not affected if the county recorder accepts an instrument for recording or filing that subsequently is found not to satisfy the requirements of division (A) of this section." (Emphasis added.) ). Recording statute R.C. 317.12 specifically appears to indicate that when a deed is accepted by the recorder's office it receives a file stamp date and file number and then when it is recorded it receives another file stamp date and more information about the official record where it is recorded:

Upon the presentation of a deed or other instrument of writing for record, the county recorder shall indorse thereon the date, the precise time of its presentation, and a file number. The file numbering shall be consecutive and in the order in which the instrument of writing is received for record, except financing statements, which may have a separate series of file numbers and may be filed separately, as provided by sections 1309.501 to 1309.527 of the Revised Code. The recorder shall, without fee, give to the person presenting such instrument a receipt naming the parties thereto and the date thereof. When a deed or other instrument is recorded, the county recorder shall indorse on it the time when recorded, and the number or letter and page of the official records in which it is recorded.

R.C. 317.12.

{¶ 18} Therefore, Appellant is correct that recording and filing are two separate acts.

{¶ 19} Appellant then argues filing equates with delivery; it asserts all it was required to do was to have the affidavit delivered to the recorder's office for the lien to be considered filed. That argument has no merit for two reasons.

{¶ 20} Appellant's position is an incorrect view of "filing." While R.C. Chapter 317 uses the words filing and recording, the words presentation and received are also used. Presentation and received as used in the statutes appear to be more akin to delivery. For instance, R.C. 317.12, as quoted above, uses the word presentation which appears to be delivery or receiving the document for filing and/or recording. R.C. 317.08(A) states, "The county recorder shall record all instruments in one general record series to be known as the 'official records.' The county recorder shall record in the official records all of the following instruments that are presented for recording, upon payment of the fees prescribed by law." (Emphasis added.) R.C. 317.13(A) indicates the county recorder "shall record the date and precise time the instrument was presented for record." R.C. 317.09(A)(1) states the recorder shall indicate the time and date the notice of federal lien or a certificate of discharge of a federal lien was "received." Consequently, one might conclude filing is more than delivery and if the statute meant delivery was all that was required the word presented or received would have been used.

{¶ 21} Moreover, the statutes make it clear that a county recorder has the discretion to reject instruments for filing or recording. R.C. 317.111 indicates an instrument will not be "received for record or filing by the county recorder" unless the name of the person that prepared the instrument is on the instrument and is legible. R.C. 317.112(B)(3) provides, "The notice that is imparted by recording or filing of an instrument is not affected if the county recorder accepts an instrument for recording or filing that subsequently is found not to satisfy the requirements of division (A) of this section." R.C. 317.082 states, "The county recorder shall not accept such a document for recording if it includes any individual's personal information." A provision in the recording data statute specifically indicates the recorder is permitted to refuse instruments for recording:

The county recorder may refuse to record an instrument of writing presented for recording if the instrument is not required or authorized by the Revised Code to be recorded or the county recorder has reasonable cause to believe the instrument is materially false or fraudulent. This division does not create a duty upon a recorder to inspect, evaluate, or investigate an instrument of writing that is presented for recording.

R.C. 317.13(B).

{¶ 22} In 1961, the Ohio Supreme Court addressed a county recorder's powers and found "in the performance of [a Recorder's] duties, he, as a ministerial officer, may exercise some discretion and is not absolutely required to accept, record and index every instrument presented to him." State ex rel. Preston v. Shaver , 172 Ohio St. 111, 114, 173 N.E.2d 758 (1961) (mandamus action finding the county recorder's office was not required to record instruments granting the state an easement), citing Chapter 317 of the Revised Code. In Preston , the recorder rejected the instrument. Id. The court of appeals found it was within the recorder's discretion to reject the instrument because the description of the easement conveyed was not sufficiently definite, accurate, and detailed. Id. The Ohio Supreme Court stated, given the record, it could not hold the court of appeals was wrong in its conclusion. Id.

{¶ 23} Thus, the statutes and case law indicate the county recorder has discretion in rejecting an instrument. In this instance, the record is clear the recorder rejected the instrument because it allegedly did not contain an accurate legal description. The letter rejecting the instrument is attached to the second amended complaint.

{¶ 24} R.C. 1311.06(A) mandates that the affidavit must give a description of the property to be charged. Division (D) states the description of the property is sufficient if it is made in accordance with R.C. 1311.04(B)(1). That provision indicates the affidavit must contain a "legal description of the real property." R.C. 1311.04(B)(1).

{¶ 25} Since R.C. 317.13 indicates a county recorder can refuse to record an instrument that is not authorized by the Revised Code or if the county recorder had reasonable cause to believe the instrument is "materially false," an incorrect legal description provides a basis for rejecting the instrument. Courts have indicated there is no valid lien if there is not a correct legal description. "An incorrect description of the property that is the subject of a mechanic's lien generally vitiates that lien." JJO Constr., Inc. v. Penrod , 8th Dist. No. 93230, 2010-Ohio-2601, 2010 WL 2333016, ¶ 17, quoting Internatl. Refractory Serv. Corp. v. Woodmen of the World Life Ins. Soc. , 68 Ohio App.3d 513, 516, 589 N.E.2d 79 (9th Dist.1990). If the party's affidavit did not contain all of the information required by statute, then the lien is not legally established. C.C. Constance & Sons v. Lay , 122 Ohio St. 468, 468-469, 172 N.E. 283 (1930).

{¶ 26} This court concludes, the Civ.R. 12(B)(6) motion was properly granted; "file for record" means more than mere delivery and the recorder was permitted to reject the instrument if it did not comply with the statute. This holding does not determine whether or not the recorder acted correctly in rejecting the instrument.

{¶ 27} Appellant does not specifically argue the recorder abused its discretion in rejecting the instrument; it maintains the document was filed because it was delivered to the recorder. However, the recorder's duty to accept the instrument may be intrinsically tied to the argument made by Appellant, and thus, we will address whether the trial court abused its discretion in rejecting the instrument.

{¶ 28} However, before addressing that issue, two things must be noted. First, if Appellant wanted to argue the recorder erred in rejecting the instrument, it could have availed itself of R.C. 317.13(C), which provides:

If a person presents an instrument of writing to the county recorder for recording and the county recorder, pursuant to division (B) of this section, refuses to record the instrument, the person has a cause of action for an order from the court of common pleas in the county that the county recorder serves, to require the county recorder to record the instrument. If the court determines that the instrument is required or authorized by the Revised Code to be recorded and is not materially false or fraudulent, it shall order the county recorder to record the instrument.

R.C. 317.13(C).

{¶ 29} Appellant did not file an action seeking to have the recorder accept and record the instrument, despite having notice of the rejection.

{¶ 30} Appellant also did not attempt to correct the alleged deficiencies in the affidavit within the prescribed time, even though Appellant had ample time to do so. Appellant had close to two months to add the information the recorder requested to the affidavit and this matter would have been resolved. Instead, Appellant waited approximately three months after the expiration of the 120 day time limit to file a corrected affidavit.

{¶ 31} Regardless, the recorder acted within its authority to reject the July 2014 affidavit. Attached to the second amended complaint was the purported affidavit Appellant attempted to file for record and the recorder's office rejection letter.

As previously stated, in determining whether the complaint failed to state a claim upon which relief could be granted, the attachments to the complaint can be considered. Mavroudis , 2017-Ohio-8649 at ¶ 8, citing Civ.R. 10(C). The letter rejecting the affidavit states the legal description of the property appears to be incorrect and the legal description was required to have the township name and number, range number, and section number. The rejected affidavit gave the following legal description:

Tract # 8, known as Tax Parcel # 12-00348.000, bounded substantially by lands now or formerly owned as follows:
On the North by: John C. Beadnell
On the East by: Merle Hull
On the South by: Johnny S. Kruprzak and Jay W. Meister and Merle Hull
On the West by: Brown Family Real Estate Partnership and more specifically described in that Deed dated 5-2-1972, located at Book 177, Page 861, and estimated to compromise 160 acres.

Second Amended Complaint, Exhibit B.

{¶ 32} The only difference between the rejected affidavit and the accepted affidavit is instead of "Tract # 8," the accepted affidavit states, "In the Township of Fox, County of Carroll, State of Ohio, located in Section 12, Township 13, Range 4."

{¶ 33} As aforementioned, R.C. 1311.06(A) mandates the affidavit must give a description of the property to be charged and division (D) indicates the description of the property is sufficient if it is made in accordance with R.C. 1311.04(B)(1). That provision states the affidavit must contain a "legal description of the real property." R.C. 1311.04(B)(1). It further provides, "For purposes of this division, a description sufficient to describe the real property for the purpose of conveyance, or contained in the instrument by which the owner, part owner, or lessee took title, is a legal description." R.C. 1311.04(B)(1).

{¶ 34} Case law does not indicate whether a legal description must contain the township name and number, range number, and section number. One place in the Revised Code where "legal description" is defined is in R.C. 5313.01(E), which states, " 'Legal description' means a description of the property by metes and bounds or lot numbers of a recorded plat including a description of any portion of the property subject to an easement or reservation, if any."

{¶ 35} It seems logical that an accurate legal description must contain the township name and number, range number, and section number to be considered an accurate legal description. The description in the first affidavit only gives a tract number and tax parcel number. That appears to be an inaccurate/incorrect description, which is exactly the stated reason for rejection. Thus, the recorder's office appropriately exercised its discretion in rejecting the affidavit.

Conclusion

{¶ 36} For the reasons stated above, this court concludes "file for record" does not mean simply delivery, it requires more. The recorder was not required to accept the instrument, and the recorder acted within its discretion to reject the instrument because it did not contain an accurate legal description. Thus, the affidavit did not comply with the mechanic's lien statutes. The assignment of error is meritless and the trial court's decision is affirmed.

Waite, J., concurs.

Bartlett, J., concurs.


author: EILEEN A. GALLAGHER, A.J.:

text:
    IN RE: T.S.
    No. 106825
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: September 13, 2018
    Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Anthony Thomas Miranda, Chadwick P. Cleveland, Assistant Prosecuting Attorneys, 1200 Ontario Street, Cleveland, Ohio 44113, Attorneys for Appellant
    Mark A. Stanton, Cuyahoga County Public Defender, BY: Frank Cavallo, Assistant Public Defender, 310 Lakeside Ave., Suite 200, Cleveland, Ohio 44115, Attorneys for Appellee
    Pinkie Lue Clark, P.O. Box 93184, Cleveland, Ohio 44101, Guardian ad Litem
    BEFORE: E.A. Gallagher, A.J., Jones, J., and Keough, J.
    JOURNAL ENTRY AND OPINION
   EILEEN A. GALLAGHER, A.J.:

{¶ 1} The state appeals the decision of the Cuyahoga County Court of Common Pleas Juvenile Division ("juvenile court") dismissing T.S.'s indictment as a serious youthful offender ("SYO"). The state argues that the juvenile court erred in its construing of the language in R.C. 2152.13 and dismissing the indictment as untimely under division (A)(4) of that section. For the following reasons, we affirm.

Factual and Procedural Background

{¶ 2} A two-count complaint was filed against T.S. on May 17, 2017, alleging him to be a delinquent child on charges of aggravated robbery and kidnapping. The complaint did not contain SYO specifications pursuant to R.C. 2152.13(A)(3). On December 28, 2017, the juvenile court issued a journal entry denying a motion by the state to relinquish jurisdiction pursuant to the discretionary transfer provisions of R.C. 2152.10(B) and 2152.12(B).

{¶ 3} On January 26, 2018, a grand jury indictment was returned against T.S. The indictment covered the same two counts of aggravated robbery and kidnapping and for each count included both mandatory and discretionary SYO specifications pursuant to R.C. 2152.11.

{¶ 4} On February 9, 2018, the juvenile court issued a journal entry dismissing the indictment due to the state's failure to comply with the 20-day limitation found in R.C. 2152.13(A)(4), which provides the procedure to institute a notice of intent to seek a SYO dispositional sentence. The state appeals.

Law and Analysis

I. R.C. 2152.13

{¶ 5} The state argues that the juvenile court erred in dismissing the indictment because, they argue, R.C. 2152.13(A)(1) allows it to circumvent the time constrictions for filing notice under that section and obtain a SYO indictment at any time. R.C. 2152.13 provides in relevant part:

(A) * * * [A] juvenile court may impose a serious youthful offender dispositional sentence on a child only if the prosecuting attorney of the county in which the delinquent act allegedly occurred initiates the process against the child in accordance with this division, and the child is an alleged delinquent child who is eligible for the dispositional sentence. The prosecuting attorney may initiate the process in any of the following ways:
(1) Obtaining an indictment of the child as a serious youthful offender;
(2) The child waives the right to indictment, charging the child in a bill of information as a serious youthful offender;
(3) Until an indictment or information is obtained, requesting a serious youthful offender dispositional sentence in the original complaint alleging that the child is a delinquent child;
(4) Until an indictment or information is obtained, if the original complaint does not request a serious youthful offender dispositional sentence, filing with the juvenile court a written notice of intent to seek a serious youthful offender dispositional sentence within twenty days after the later of the following, unless the time is extended by the juvenile court for good cause shown:
(a) The date of the child's first juvenile court hearing regarding the complaint;
(b) The date the juvenile court determines not to transfer the case under section 2152.12 of the Revised Code.
After a written notice is filed under division (A)(4) of this section, the juvenile court shall serve a copy of the notice on the child and advise the child of the prosecuting attorney's intent to seek a serious youthful offender dispositional sentence in the case.

{¶ 6} In this instance, the following facts are not in dispute: 1) this case was initiated under R.C. 2152.13(A)(4) and the initial complaint did not seek an SYO disposition; 2) the juvenile court made its determination not to transfer the case under R.C. 2152.12 on December 28, 2017; 3) the state did not file a written notice of intent to seek a SYO dispositional sentence within 20 days of that decision; and 4) the indictment charging T.S. as a serious youthful offender was obtained outside the 20-day window for notice.

{¶ 7} The state contends that it is not bound by the 20-day notice limitation in R.C. 2152.13(A)(4) when it elects to obtain an indictment under division (A)(1). To this end, the state argues that the option to obtain an indictment can be exercised at the state's discretion at any time following the denial of transfer under R.C. 2152.12. The state's argument is centered on the words "[u]ntil an indictment ... is obtained" which it takes to mean that the return of an indictment under division (A)(1), at any point in time, operates to trump all other provisions of the statute.

{¶ 8} We disagree. Both parties are ignoring the relevant language in R.C. 2152.13(C)(1) which provides:

A child for whom a serious youthful offender dispositional sentence is sought by a prosecuting attorney has the right to a grand jury determination of probable cause that the child committed the act charged and that the child is eligible by age for a serious youthful offender dispositional sentence. The grand jury may be impaneled by the court of common pleas or the juvenile court.

{¶ 9} Read in conjunction with this division the meaning of the phrase "[u]ntil an indictment ... is obtained" is clear. Under either section (A)(3) or (A)(4) the state may provide notice to the alleged delinquent child of its intent to pursue a SYO disposition. However, the child is entitled to a grand jury determination of probable cause pursuant to division (C)(1). This is the indictment referenced by the language in question in divisions (A)(3) and (A)(4).

{¶ 10} Within this context, it is clear, under R.C. 2152.13(A)(4), that the state must provide notice to the alleged delinquent child of its intent to pursue an indictment of the child as a serious youthful offender within 20 days of the juvenile court's determination to deny transfer. To hold otherwise would render divisions (A)(3), (A)(4) and (B) of R.C. 2152.13 superfluous. The point of both (A)(3) and (A)(4) is to provide notice to the child that the state intends to seek a SYO disposition. Once this occurs, the juvenile court is required, under R.C. 2152.13(B) to "hold a preliminary hearing to determine if there is probable cause that the child committed the act charged and is by age eligible for, or required to receive, a serious youthful offender dispositional sentence." If the court finds that such probable cause exists, the child is entitled to a speedy trial right pursuant to division (C).

{¶ 11} Pursuant to R.C. 2152.13(C)(1)(c), a juvenile's speedy trial right begins as of the date that the prosecuting attorney files the written notice of intent to seek a serious youthful offender disposition. In other words, when the state brings a complaint that does not initially include a SYO specification but instead later provides notice of its intent to seek an SYO disposition pursuant to R.C. 2152.13(A)(4) the child's speedy trial right attaches at the date the written notice is provided rather than the date that the prosecutor subsequently obtains an indictment. The state's proposed interpretation of the statute, whereby it would not be bound by the notice requirements of R.C. 2152.13(A)(4), would contradict the plain terminology of R.C. 2152.13(C)(1)(c) and create a loophole for circumventing the speedy trial right set forth therein. See also In re D.S. , 8th Dist. Cuyahoga No. 97757, 2012-Ohio-2213, 2012 WL 1806854, ¶ 15 (noting, in dicta, that a juvenile's speedy trial right attached upon the state's filing of a notice of intent to seek an SYO disposition even when an indictment was subsequently obtained).

{¶ 12} We are unpersuaded by the state's citation to In re J.B. , 12th Dist. Butler No. CA2004-09-226, 2005-Ohio-7029, 2005 WL 3610482, as that case failed to address the relevant language in R.C. 2152.13(B) and (C)(1) as applied to the disputed terminology in division (A)(4).

{¶ 13} We find no error in the juvenile court's decision to dismiss the indictment in this instance as it was obtained after the 20-day period for notice to T.S. had passed.

{¶ 14} The state's sole assignment of error is overruled.

{¶ 15} The judgment of the juvenile court is affirmed.

LARRY A. JONES, SR., J., and KATHLEEN A. KEOUGH J., CONCUR


author: HENDRICKSON, J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Michael A. MARCUM, Defendant-Appellant.
    NO. CA2017-05-057
    Court of Appeals of Ohio, Twelfth District, Butler County.
    March 19, 2018
    Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee
    Scott N. Blauvelt, 315 South Monument Avenue, Hamilton, Ohio 45011, for defendant-appellant
   HENDRICKSON, J.

{¶ 1} Michael Marcum appeals his convictions in the Butler County Court of Common Pleas for robbery offenses. For the reasons detailed below, this court affirms Marcum's convictions.

{¶ 2} Shortly before 8 p.m. on February 17, 2016, a man entered Discount Tobacco on Breiel Boulevard in Middletown, displayed a knife, and demanded cash from the employee. The individual concealed his face with a "doo rag," and was otherwise covered with clothing, including a dark jacket, white gloves, and white shoes. After the employee gave him $300, the man left on foot. A responding police officer's K-9 unit tracked a scent southwest from the tobacco store. The track ended, unsuccessfully, around the intersection of Grand Avenue and Gideon Road.

{¶ 3} Seven weeks later, at around 4:00 p.m. on April 6, 2016, a man entered the Breiel Boulevard Walgreens, which is located a block south of Discount Tobacco. The man handed the check-out employee a note demanding cash and indicating that he possessed a gun. The employee provided the man with $193, and the man fled on foot. A K-9 unit tracked a scent southwest through a residential area. The K-9 unit lost the scent in the area of 723 Eaton Avenue, less than a half mile from the Walgreens. Marcum's rented home, located at 3921 Lewis Street, is visible from where the K-9 track ended.

{¶ 4} Marcum's sister-in-law saw a Facebook post discussing the Walgreens robbery the same day it happened. She suspected Marcum was the suspect and contacted the Middletown police department. Middletown police detectives then spoke with Marcum at his home. Marcum denied any involvement in the Walgreens robbery and gave the detectives written consent to search the home. A search by the police failed to reveal any evidence related to the Walgreens robbery.

{¶ 5} Detectives interviewed Marcum's wife, Marie. They understood Marie had left the home a few days prior because of a fight with Marcum. Marie reviewed security camera footage of the Discount Tobacco robbery and identified the coat the suspect was wearing in the video as her green jacket. She told police that they would find the jacket in the home. In addition, Marie provided the detectives with written consent to search the home. At the time, Marie did not have a key to the home but showed the police how they could enter the home through a window. In the subsequent search of the home, the police recovered white gloves, a pair of throwing knives, a green winter jacket, and a pair of white "Skechers" brand shoes.

{¶ 6} In March 2017, a Butler County grand jury indicted Marcum with one count of aggravated robbery, a violation of R.C. 2911.01(A)(1) and a first-degree felony (Discount Tobacco robbery), and one count of robbery, a violation of R.C. 2911.02(A)(2) and a second-degree felony (Walgreens robbery). Prior to trial, Marcum moved to suppress evidence collected by police in the search of his home consented to by his wife. Marcum argued that Marie did not have authority to consent to the search. The court held an evidentiary hearing and subsequently denied the motion. The court found that Marie possessed actual authority to consent to the search. The court further found that even if Marie did not have actual authority, the police reasonably relied on her apparent ability to consent to the search.

{¶ 7} The case proceeded to a jury trial. The jury initially heard evidence from the two store employees and watched security camera footage of the robberies. As to the Discount Tobacco robbery, the employee identified Marcum by her familiarity with his voice; he was a customer and had worked at the strip mall in which the store was located. The State then called Marcum's sister-in-law, stepdaughter, and a Middletown police detective, who all testified that they recognized Marcum in the Walgreens robbery security camera footage. Finally, the Middletown detective and his partner testified about their robbery investigations. After deliberation, the jury found Marcum guilty of both counts in the indictment. The court sentenced Marcum to an aggregate sentence of 12 years in prison.

{¶ 8} Marcum appeals, raising five assignments of error, which we will address out of order for ease of analysis.

{¶ 9} Assignment of Error No. 3:

{¶ 10} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN OVERRULING HIS MOTION TO SUPPRESS EVIDENCE.

{¶ 11} Marcum argues that the court erred in denying his suppression motion because Marie lacked authority to give police consent to search the home. Marcum contends that Marie moved out of the home with no intention of returning eight days before the search occurred, changed the mailing address for her retirement check, and did not take a key with her to gain re-entry to the home.

{¶ 12} Marcum also argues that it was unreasonable for the police to believe that Marie had apparent authority to consent to the search of the home. Marcum contends that the police were aware that Marie left the home and was residing with her daughter, she did not have a key to the home, and to gain entry to the home a police officer had to climb through a window and open the door from inside.

{¶ 13} Our review of a trial court's denial of a motion to suppress evidence presents a mixed question of law and fact. State v. Cochran , 12th Dist. Preble No. CA2006-10-023, 2007-Ohio-3353, 2007 WL 1880207, ¶ 12. Acting as the trier of fact, the trial court is in the best position to resolve factual questions and evaluate witness credibility. Id. Therefore, when reviewing the denial of a motion to suppress, a reviewing court is bound to accept the trial court's findings of fact if they are supported by competent, credible evidence. State v. Oatis , 12th Dist. Butler No. CA2005-03-074, 2005-Ohio-6038, 2005 WL 3031883, ¶ 10. "An appellate court, however, independently reviews the trial court's legal conclusions based on those facts and determines, without deference to the trial court's decision, whether as a matter of law, the facts satisfy the appropriate legal standard." Cochran at ¶ 12.

{¶ 14} The Fourth Amendment to the United States Constitution assures the "right of the people to be secure in their * * * houses * * * against unreasonable searches and seizures." "[S]earches and seizures inside a home without a warrant are presumptively unreasonable." Payton v. New York , 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). However, because the ultimate touchstone of the Fourth Amendment is reasonableness, the warrant requirement is subject to certain exceptions. Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

{¶ 15} One exception to the warrant requirement is a search conducted pursuant to consent. Schneckloth v. Bustamonte , 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). "When the state seeks to establish consent for a warrantless search, it is not limited to proving that the defendant himself consented, but it may also show that the consent was obtained from a third party who possessed common authority or other sufficient relationship over the premises to be inspected." State v. Boland , 12th Dist. Clermont Nos. CA2007-01-016 and CA2007-01-017, 2008-Ohio-353, 2008 WL 282156, ¶ 12, citing United States v. Matlock , 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974).

{¶ 16} "Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, * * * but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched." Matlock at 171, fn. 7, 94 S.Ct. 988. The state bears the burden of establishing common authority. Illinois v. Rodriguez , 497 U.S. 177, 181, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990).

{¶ 17} Even if a third party does not possess actual authority to consent to a search, the Fourth Amendment is not violated if the police reasonably relied on the third party's apparent authority to consent.

State v. Norman , 12th Dist., 2014-Ohio-5084, 21 N.E.3d 1153, ¶ 38. Apparent authority is judged by an objective standard. Id. A warrantless search based on consent is permissible if "the facts available to the officer at the moment [would] 'warrant a man of reasonable caution in the belief that the consenting party had authority over the premises.' " Id. , citing Rodriguez at 188, 110 S.Ct. 2793, in turn quoting Terry v. Ohio , 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

{¶ 18} At the suppression hearing, Detective Jonathon Rawlins testified that he first entered Marcum's home with Marcum's consent on the day of the Walgreens robbery. While he conducted his search, he noted that the home contained both male and female clothing. Detective Rawlins had earlier met both Marcum and Marie. Marie introduced herself to him as Marcum's wife. During Marcum's police interview, Marcum said that he and Marie had been in an argument and she left the home a "couple days" prior.

{¶ 19} Detective Rawlins interviewed Marie on April 7, 2016. She identified a jacket that Marcum was allegedly wearing in the Discount Tobacco security video. Marie told Detective Rawlins that the jacket was in the home. Marie said that she left the home on April 3, 2016, and went to stay with her daughter for a few days over an argument concerning money that Marcum stole from Marie to support his drug habit.

{¶ 20} Detective Rawlins went on to testify that his impression from speaking with Marie was that she had not "completely left" the home. Marie told him that she left most of her possessions in the home and she only took one outfit with her. Detective Rawlins believed this statement was corroborated by the amount of women's clothing he observed at the home during the first search.

{¶ 21} Detective Rawlins also testified that he contacted the Marcums' landlords and confirmed that the home was rented to both Marcum and Marie. The state introduced a copy of the lease agreement as well as a utility bill for 3921 Lewis Street addressed to both Marcum and Marie.

{¶ 22} Detective Rawlins sought and obtained Marie's written consent to search the the home. On the consent form she signed, Marie wrote her address as 3921 Lewis Street. Detective Rawlins, Marie, and other law enforcement people then went to the home together.

{¶ 23} Marie and the police officers proceeded to the back entrance of the home as the front door was barricaded from the inside. The back door was either locked or would not open from the outside. Marie did not have a key but directed police to enter the home by climbing through a window adjacent to the back door and opening the door from the inside. The police subsequently searched the residence, locating Marie's green jacket among other items.

{¶ 24} Marie testified in support of Marcum at the motion to suppress hearing. As opposed to the April 3, 2016 date she allegedly provided Detective Rawlins, Marie stated that she moved out of the home on March 31, or eight days before the search. She left because Marcum stole money from her and threatened to physically harm her. When she left, she knew she was "never going back." However, Marie was uncertain whether she told Detective Rawlins that she permanently moved out of the home.

{¶ 25} When Marie moved out, she took three "big bags" of clothing with her comprised of clothes she regularly wore. She left the clothes she did not wear at the home. Marie knew when she left the home that if she did return she would have to bring the police with her. Marie testified that she did not take a house key with her when she left because she could not find one. She thought Marcum probably had the key when she left.

{¶ 26} Marie went back to the house on April 1 and sat in her car waiting to intercept her retirement check from the mailbox. She later changed the address where her retirement check would be sent. Marie admitted that she intended to attempt reunification with Marcum once he was released from jail.

{¶ 27} There is some evidence to support the contention that Marie had authority to consent to the search. The premises were her marital home, they were leased to her, and her name appeared on a utility bill. She had only recently left the home because of a domestic argument. She left the home without some possessions. And she knew how to gain access to the home without a key. Nonetheless, the evidence at the suppression hearing was not "overly convincing" to establish that Marie had "joint access or control for most purposes."

{¶ 28} However, the record contains competent, credible evidence that Detective Rawlins reasonably relied on Marie's apparent authority to consent. The fact that she signed a written consent to search form indicates Marie's subjective belief that she possessed authority to allow the search. More significantly, Marie listed 3921 Lewis Street as her residence, which would convey to Detective Rawlins that Marie believed that location to be her current home. Moreover, Detective Rawlins had earlier met Marie and knew her to be Marcum's wife and knew that 3921 Lewis Street was the couple's home.

{¶ 29} Detective Rawlins understood that Marie had moved out of the residence only a few days before the search occurred and that she was temporarily staying with her daughter. Marie further told Detective Rawlins that she only took one outfit when she left, which Detective Rawlins believed was corroborated by his search of the home a day prior. Notably, Detective Rawlins did not merely rely upon his familiarity with Marie or her statements, he also contacted the owners of 3921 Lewis Street and confirmed that they were renting to both Marcum and Marie.

{¶ 30} Despite her lack of a key to enter the premises, Marie knew how to enter the home, which would also convey familiarity. Finally, Marie admitted she was not certain whether she told Detective Rawlins she had permanently moved out of the home. Based on this evidence, Detective Rawlins could objectively and reasonably surmise that Marie had apparent authority to consent to a search of the home.

{¶ 31} There was some conflict in the testimony between Marie and Detective Rawlins, notably with respect to when Marie claimed to have told Detective Rawlins she moved out and with respect to the possessions she took with her. However, when there is a conflict in the testimony of witnesses, it is for the trier of fact to determine the weight and credibility to be given such evidence. See State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. Credibility determinations are based not only on the substance of the testimony, but from all facts and circumstances surrounding the testimony, particularly the manner and demeanor of the witnesses, which only the trier of fact can observe.

State v. Preston , 12th Dist. Clermont No. CA2012-05-036, 2012-Ohio-6176, 2012 WL 6738263, ¶ 24. In this regard, the trial court stated that it found Marie's assertion that Detective Rawlins lied incredible.

{¶ 32} Marcum cites several cases for the proposition that law enforcement could not reasonably rely on the apparent authority of an individual who did not possess a key or otherwise was unable to enter a locked area. State v. Denune , 82 Ohio App.3d 497, 612 N.E.2d 768 (12th Dist.1992) ; State v. Norman , 12th Dist., 2014-Ohio-5084, 21 N.E.3d 1153 ; and State v. Gordnoshnka , 8th Dist. Cuyahoga No. 86319, 2006-Ohio-563, 2006 WL 302354. In Denune , this court found that police could not reasonably conclude that salvage yard employees could validly authorize the search of padlocked trailers that a company stored at the yard, where the employees did not have keys to the padlocks. Id. at 510, 612 N.E.2d 768. In Norman , this court held that law enforcement could not reasonably rely on the apparent authority of a homeowner's consent to search a rented basement, where the homeowner produced a written lease and could not open the locked door to the basement. Id. at ¶ 39. In Gordnoshnka , the court held that police could not reasonably rely on the apparent authority of a homeowner who gave consent to search his adult son's locked rooms, to which he had no key and where he told the police that the rooms were solely the son's. Id. at ¶ 19. The only common thread between those cases and this case is that the police were aware that Marie lacked a key to enter the home. However, as discussed, there was other evidence upon which Detective Rawlins could reasonably rely to conclude that Marie, despite not having a key, had joint access or control of the home for most purposes. Accordingly, this court overrules Marcum's third assignment of error.

{¶ 33} Assignment of Error No. 4:

{¶ 34} APPELLANT WAS DENIED THE RIGHT TO DUE PROCESS AND A FAIR TRIAL BY THE ADMISSION OF IRRELEVANT PRIOR BAD ACTS EVIDENCE.

{¶ 35} In his fourth assignment of error, Marcum argues that that the court erred in allowing several state's witnesses to testify to prior bad acts in contravention of Evid.R. 404(B). Specifically, Marcum points to testimony from his stepdaughter, Kenetta Lawson, and his sister-in-law, Millie Manns, alleging that he stole cash from his wife and testimony from Detective Rawlins that the detective was familiar with Marcum because of another investigation.

{¶ 36} Marcum concedes that he is limited to a review for plain error because he did not object to the challenged testimony. Therefore, on appeal, he has waived any error in this regard except plain error. "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." Crim.R. 52(B). The accused bears the burden to demonstrate plain error. State v. Quarterman , 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, at ¶ 16. The defendant must show "an error, i.e., a deviation from a legal rule" that constitutes "an 'obvious' defect in the trial proceedings." State v. Barnes , 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002), quoting State v. Sanders , 92 Ohio St.3d 245, 257, 750 N.E.2d 90 (2001).

{¶ 37} Plain error does not exist unless, but for the error, the outcome of the trial would have been different. State v. Blacker , 12th Dist. Warren No. CA2008-07-094, 2009-Ohio-5519, 2009 WL 3350404, ¶ 39. Marcum argues that the outcome of trial would have been different but for the challenged testimony because there was not overwhelming evidence of his guilt.

{¶ 38} "Evidence that an accused committed a crime other than the one for which he is on trial is not admissible when its sole purpose is to show the accused's propensity or inclination to commit crime or that he acted in conformity with bad character." State v. Williams , 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 15. To determine the admissibility of other acts evidence, the court should first "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." Id. at ¶ 20, citing Evid.R. 401. Second, the court should determine if "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)." Id. Third, the court should "consider whether the probative value of the other acts evidence is substantially outweighed by the danger of unfair prejudice." Id ., citing Evid.R. 403.

{¶ 39} This court concludes that the challenged testimony was improper. The testimony was irrelevant to the determination of the relevant issues, i.e., whether Marcum committed the robberies at Discount Tobacco and Walgreens. Otherwise, the evidence was only useful to show Marcum's propensity for committing theft crimes or being a criminal. As such, there was a danger of unfair prejudice resulting from the admission of the improper evidence.

{¶ 40} Nonetheless, this court does not find that the error rose to the level of plain error. The testimony was brief in the context of the three-day trial. Neither party focused on the testimony, which was primarily contextual, i.e., the witnesses were discussing foundational or background information. Finally, there was "substantial other evidence" in the record to support Marcum's conviction. See State v. Neyland , 139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, at ¶ 158 (applying harmless error analysis to the improper admission of other acts evidence). As will be discussed in response to Marcum's first and second assignments of error, below, security camera footage, witness identification, circumstantial evidence, and physical evidence recovered from Marcum's home linked Marcum to the Discount Tobacco aggravated robbery and the Walgreens robbery. After thoroughly reviewing the record, this court is not concerned that the challenged testimony affected the outcome of the case. Accordingly, this court overrules Marcum's fourth assignment of error.

{¶ 41} Assignment of Error No. 5:

{¶ 42} INEFFECTIVE ASSISTANCE OF COUNSEL.

{¶ 43} Marcum argues that his trial counsel provided ineffective assistance of counsel by failing to object to the prior bad acts evidence discussed in his fourth assignment of error. To prevail on an ineffective assistance of counsel claim, Marcum must show his trial counsel's performance was deficient and that he was prejudiced as a result. State v. Clarke , 12th Dist. Butler No. CA2015-11-189, 2016-Ohio-7187, 2016 WL 5874478, ¶ 49 ; Strickland v. Washington , 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Trial counsel's performance will not be deemed deficient unless it fell below an objective standard of reasonableness. Strickland at 688, 104 S.Ct. 2052. To show prejudice, Marcum must establish that, but for his trial counsel's errors, there is a reasonable probability that the result of his trial would have been different. Id. at 694, 104 S.Ct. 2052.

{¶ 44} The failure to satisfy either prong of the Strickland test is fatal to an ineffective assistance of counsel claim. Clarke at ¶ 49. Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. State v. Burns , 12th Dist. Clinton No. CA2013-10-019, 2014-Ohio-4625, 2014 WL 5316515, ¶ 7.

{¶ 45} Our review of the record indicates that there was a degree of spontaneity to the challenged testimony that could have prevented defense counsel from anticipating the objectionable testimony before it reached the ears of the jury. The failure to object therefore could be strategic, as objecting to the testimony after the jury had already heard it could narrow its focus on the improper evidence.

{¶ 46} However, even if trial counsel's performance was deficient, Marcum has failed to meet his burden to demonstrate prejudice, i.e., a different outcome at trial. Again, as will be discussed in response to the next two assignments of error, substantial other evidence supported the jury's verdicts. Consequently, this court overrules Marcum's fifth assignment of error.

{¶ 47} Assignment of Error No.1:

{¶ 48} THE VERDICT FOR COUNT ONE WAS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 49} Assignment of Error No. 2:

{¶ 50} THE VERDICT FOR COUNT TWO WAS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 51} In his first and second assignments of error, Marcum argues that his convictions were not supported by the weight of the evidence because the state failed to prove his identity as the Discount Tobacco and Walgreens robber. A manifest weight of the evidence challenge examines the "inclination of the greater amount of credible evidence, offered at a trial, to support one side of the issue rather than the other." State v. Barnett , 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, 2012 WL 1940800, ¶ 14. To determine whether a conviction is against the manifest weight of the evidence, the reviewing court must look at the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether in resolving the conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Id. An appellate court will overturn a conviction due to the manifest weight of the evidence only in extraordinary circumstances when the evidence presented at trial weighs heavily in favor of acquittal. Id. at ¶ 15.

Count One-Discount Tobacco robbery

{¶ 52} The state introduced security camera footage and still photographs of the robbery. The images depict a man entering the tobacco store wearing jeans, a dark-colored jacket, a knit hat, a face covering of some sort, white gloves, and white shoes. The man appears to be carrying a knife in his right hand.

{¶ 53} The tobacco store employee, Melinda Martin, testified that the suspect was approximately six feet tall and of medium build. She believed that the man was in his late 40s or early 50s because she saw grey beard hairs through the "doo rag." Marcum would have been 43 years old at the time of the robbery.

{¶ 54} Martin recognized Marcum's "deep" voice. Martin was familiar with Marcum because he was a customer. Marcum's stepdaughter, Kenetta Lawson confirmed that Marcum shopped at Discount Tobacco. Martin also testified that Marcum had worked on the strip mall where the store was located. Martin recalled an incident when Marcum was working at the building and asked her if she always worked alone. Detective Rawlins testified that he spoke with the owner of the strip mall and confirmed that Marcum did some work on the property.

{¶ 55} Martin testified that the knife, white gloves, and the jacket recovered by police from Marcum's home either were the items she observed on the suspect or resembled them. Detective Rawlins testified concerning some of the similarities between what police recovered at Marcum's home and the items of clothing worn by the suspect in the security camera footage. With respect to the jacket, Detective Rawlins noted the location of snaps, tags, and zippers on the recovered jacket appeared the same as the jacket worn by the suspect in the still images of the robbery. Detective Rawlins also noted certain similarities between the pair of confiscated Skechers shoes and the white shoes worn by the suspect in the security footage. Detective Rawlins additionally testified that Marcum stood approximately 6' 2? to 6' 3? tall, which was consistent with the height of the suspect depicted in the security camera footage. Finally, the K-9 unit tracked a scent generally in the direction of Marcum's residence, which was located approximately three quarters of a mile from the tobacco store.

{¶ 56} This court concludes that Martin's identification of Marcum and the various circumstantial evidence described above would allow rational jurors to reasonably conclude that the state proved Marcum's identity beyond a reasonable doubt. As such, this court overrules Marcum's first assignment of error.

Count Two-Walgreens robbery

{¶ 57} The state introduced security camera footage of the Walgreens robbery, which was of poor quality. However, it depicts a taller man wearing a knit hat and glasses entering the Walgreens. The man later approaches the check-out area and passes a note to the check-out employee. The employee looks at the note, opens the register, puts money into a plastic bag and hands the bag to the suspect. The check-out employee could not identify Marcum. However, the employee testified that Walgreens trained her not to make eye contact with a robber. A K-9 unit tracked a human scent from Walgreens southwest to the area of 723 Eaton Avenue. Detective Rawlins testified that Marcum's home was 150 yards from 723 Eaton Avenue and the front door was visible from that location.

{¶ 58} Kenetta Lawson, Marcum's stepdaughter, testified that her mother had been married to Marcum for 11 years and that she had known Marcum for 13 years. They had a "good" and "trusting" relationship. Lawson testified that she recognized Marcum from the Walgreens security camera footage by his appearance, gait, and mannerisms. When asked if she had any doubt as to whether Marcum was depicted in the security video, Lawson testified "I want to tell you yes, that there's a doubt, but, watching it, I don't think there is." Lawson further testified that she recognized the jacket the man was wearing.

{¶ 59} Millie Manns, Marie's sister, testified that she had known Marcum from 13 years. Manns testified that she saw a Facebook post about the robbery and then texted Lawson with her suspicions. After discussing the matter with Lawson, Manns contacted Middletown police. Manns testified that she also recognized Marcum by his appearance and gait in the security video. Manns had "no doubt" that Marcum was the individual depicted in the video.

{¶ 60} Detective Steve Winters testified that he first met Marcum in October or November of 2015 and that he had encountered him eight to ten times prior to his investigation. Detective Winters explained that when he reviewed the Walgreens security video he recognized the person in it but could not recall Marcum's name. Detective Rawlins agreed that when he and Detective Winters were watching the video, Detective Winters repeatedly stated "I know who he is, I just dealt with him." Detective Rawlins later told Detective Winters about the tip called in by Manns identifying Marcum as a potential suspect. Detective Winters then confirmed that Marcum was who he was thinking of when he initially saw the video.

{¶ 61} When Detectives Rawlins and Winters interviewed Marcum he was clean shaven. However, Marcum told the officers that he had been in Walgreens the morning of the robbery and that at that time he had a moustache, which he had dyed black with shoe polish. He was only in Walgreens momentarily. He walked down one aisle and then left the store. The police believed this was Marcum's first attempt to rob the Walgreens but he abandoned the effort because there were too many people inside the store.

{¶ 62} Marcum told the detectives that other than visiting Walgreens he left his home once to visit a cell phone store at around 5:20 p.m., or approximately one and one-half hours after the Walgreens robbery. Marcum told police he had $40 and spent it all on a cell phone. The detectives corroborated that Marcum went to the cell phone store and that he spent $40 on a cell phone. However, security camera footage at the store appears to depict Marcum with more than $40.

{¶ 63} Based on this evidence, rational jurors could reasonably conclude that the state proved Marcum's identity as the perpetrator of the Walgreens robbery beyond a reasonable doubt. This court overrules Marcum's second assignment of error.

{¶ 64} Having addressed all of Marcum's assignments of error, we hereby affirm his conviction on both charges.

S. POWELL, P.J., and RINGLAND, J., concur.

      While Detective Rawlins identified these documents at trial, it is not clear from the record whether he obtained them before or after obtaining Marie's consent. For purposes of this opinion we presume Detective Rawlins did not have access to these documents when he obtained Marie's consent.

      Detective Rawlins observed the barricade when he was in the home the day before.

      It appears that Martin only recognized Marcum's voice after he was identified as a suspect in the Walgreens robbery.