text:
    DISCIPLINARY COUNSEL v. BENBOW.
    No. 2017-1734
    Supreme Court of Ohio.
    Submitted January 24, 2018 Decided July 12, 2018.
    Scott J. Drexel, Disciplinary Counsel, and Donald M. Scheetz, Assistant Disciplinary Counsel, for relator.
    Charles J. Kettlewell, L.L.C., and Charles J. Kettlewell, for respondent.
   Per Curiam.

{¶ 1} Respondent, Brian William Benbow, of Zanesville, Ohio, Attorney Registration No. 0071404, was admitted to the practice of law in Ohio in 1999.

{¶ 2} In a complaint certified to the Board of Professional Conduct on April 6, 2017, relator, disciplinary counsel, alleged that Benbow violated multiple professional-conduct rules by engaging in sexual activity with a client in a courthouse conference room and repeatedly lying about that conduct during the ensuing disciplinary investigation. The parties submitted joint stipulations in which Benbow admitted to most of the charged misconduct. They agreed that multiple aggravating and mitigating factors are present and jointly recommended that Benbow be suspended from the practice of law for two years, with the second year stayed on conditions.

{¶ 3} After conducting a hearing, a panel of the board issued a report in which it found that Benbow committed all of the stipulated misconduct and recommended that we adopt the parties' stipulated sanction. The board adopted the panel's report in its entirety. We adopt the board's findings and suspend Benbow from the practice of law for two years, with the second year stayed on conditions.

Misconduct

{¶ 4} K.V. retained Benbow in May 2014 to represent her in a child-visitation proceeding that was pending in the Coshocton County Court of Common Pleas, Probate and Juvenile Division. On August 18, 2014, Benbow filed a written closing argument on K.V.'s behalf, and the magistrate issued a decision the following day. Benbow's representation of K.V. was complete on September 8, 2014, when the judge adopted the magistrate's decision.

{¶ 5} Before the judge issued the final decision in K.V.'s case, however, Benbow and K.V. developed a personal relationship. They exchanged texts and Facebook messages of a sexual nature along with explicit photographs of themselves-though they had agreed in advance that they would delete any such communications immediately after receiving them. Despite their agreement, a total of seven digital photographs of K.V. were saved to Benbow's computer on September 23 and 24, 2014. Benbow also admitted that he had had at least one lunch date with K.V., during which he kissed her and touched her breast.

{¶ 6} The father of K.V.'s child filed a motion to modify the court's previous visitation orders on September 23, 2014, and K.V. once again retained Benbow to represent her. Benbow subsequently kissed K.V. during a meeting at his office, but she stopped him and insisted that they prepare for her case.

{¶ 7} After attending a December 18, 2014 hearing, Benbow and K.V. entered a courthouse conference room to wait for the magistrate to complete the final orders. The conference room was equipped with a video camera that transmitted a live feed that was monitored by courthouse deputies. The video shows-and Benbow now stipulates-that he was initially seated across from K.V. but that he later moved to a chair next to her and placed his file and winter coat over his lap.

Together, they placed K.V.'s hand under Benbow's coat and onto his lap, and for the next eight minutes she fondled him and rubbed his penis through his clothing. The fondling ceased when Benbow answered a telephone call, during which the courthouse deputies delivered the magistrate's orders. Benbow and K.V. then left the courthouse together, hugged, and went their separate ways. Their conduct in the conference room was referred to the Coshocton County Sheriff's Office.

{¶ 8} Employees of the sheriff's office interviewed K.V. on December 23, 2014, but after speaking with her brother (an attorney) during a break, she terminated the interview. After leaving the sheriff's office, she called and arranged to meet Benbow that evening. When she arrived, Benbow checked her phone and patted her down to ensure that she was not recording their conversation. K.V. confirmed that pursuant to their agreement, she had deleted all of their digital photographs and communications as they occurred. Benbow advised her to retain separate counsel and then blocked all communication with her.

{¶ 9} Approximately one month later, Benbow, through his attorney, sent a letter to the Columbus Bar Association purporting to self-report the allegations against him. In that letter, however, Benbow not only affirmatively misrepresented the extent of his relationship with K.V. and the nature of their conduct in the conference room but also denied that he had engaged in any misconduct.

{¶ 10} Benbow was not forthcoming or cooperative when relator deposed him on September 15, 2016. While under oath, he omitted relevant information and affirmatively misrepresented facts regarding several issues, including the nature of his personal relationship with K.V., whether they had exchanged photographs of a sexual nature, and his role in the conduct caught on courthouse video. After reviewing the transcript of that deposition, Benbow submitted an errata sheet in which he purported to clarify his testimony-but that document also omitted relevant information and affirmatively misrepresented facts. Benbow's noncooperation continued at the panel hearing-the board characterized his testimony there as evasive and argumentative; even Benbow admitted that he was "struggling with denial."

{¶ 11} The board adopted the parties' stipulations that Benbow's conduct violated Prof.Cond.R. 1.8(j) (prohibiting a lawyer from soliciting or engaging in sexual activity with a client unless a consensual sexual relationship existed prior to the client-lawyer relationship), 8.1(a) (prohibiting a lawyer from knowingly making a false statement of material fact in connection with a disciplinary matter), 8.4(c) (prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of justice).

{¶ 12} In addition, the board found that the scope and extent of Benbow's repeated and improper sexual conduct with his client and the subsequent course of dishonest conduct constituted "extremely troubling behavior by a lawyer" and were sufficiently egregious to warrant a finding that he violated Prof.Cond.R. 8.4(h) (prohibiting a lawyer from engaging in conduct that adversely reflects on the lawyer's fitness to practice law). See Disciplinary Counsel v. Bricker , 137 Ohio St.3d 35, 2013-Ohio-3998, 997 N.E.2d 500, ¶ 21.

Sanction

{¶ 13} When imposing sanctions for attorney misconduct, we consider several relevant factors, including the ethical duties the lawyer violated, the aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions imposed in similar cases.

{¶ 14} The parties stipulated and the board found that the relevant aggravating factors here include Benbow's dishonest or selfish motive, lack of cooperation during the disciplinary process, and making false statements, submitting false evidence, or engaging in other deceptive practices during the disciplinary process. See Gov.Bar R. V(13)(B)(2), (5), and (6). The board also found that Benbow had engaged in a pattern of misconduct involving multiple offenses, acted for his own gratification, harmed a vulnerable client who was embroiled in a contentious custody dispute with someone Benbow described as a "dangerous individual," and harmed the profession by engaging in sexual activity in a courthouse, knowingly making false statements during relator's investigation, and lying under oath on multiple occasions in an effort to conceal his misconduct. See Gov.Bar R. V(13)(B)(3), (4), and (8). Further, the board suggested that at his disciplinary hearing Benbow failed to accept responsibility for his misconduct-though it did not expressly identify that failure as an aggravating factor.

{¶ 15} As mitigating factors, the parties stipulated and the board found that Benbow has no prior disciplinary record and had submitted approximately 40 letters attesting to his good character and reputation. See Gov.Bar R. V(13)(C)(1) and (5). Although Benbow presented evidence that he had sought assistance from the Ohio Lawyers Assistance Program ("OLAP"), the board noted that he did not do so until after relator filed his complaint. Indeed, Benbow has made no effort to establish that he suffered from a mitigating mental disorder, although he testified that he has been treated for anxiety and depression in the past and recently resumed counseling. See Gov.Bar R. V(13)(C)(7).

{¶ 16} In recommending that we impose the parties' agreed sanction of a two-year suspension with the second year stayed on conditions, the board considered two lines of cases-those involving repeated inappropriate sexual conduct with clients and those involving a course of dishonest conduct.

{¶ 17} In Disciplinary Counsel v. Detweiler , 135 Ohio St.3d 447, 2013-Ohio-1747, 989 N.E.2d 41, we imposed a one-year suspension on an attorney who made repeated unsolicited and unwelcome sexual advances toward a vulnerable client through text messages that culminated in his transmission of a nude photograph of himself in a state of sexual arousal. Unlike Benbow, Detweiler did not develop a physical relationship with his client or engage in false or deceptive conduct during the resulting disciplinary investigation.

{¶ 18} In Cleveland Metro. Bar Assn. v. Lockshin , 125 Ohio St.3d 529, 2010-Ohio-2207, 929 N.E.2d 1028, we indefinitely suspended an attorney who engaged in a pattern of inappropriate sexual communications with multiple clients, including a minor. Like Benbow, Lockshin avoided taking full responsibility for his inappropriate behaviors and gave false deposition testimony. But Lockshin's conduct was arguably more egregious than Benbow's because Lockshin engaged in inappropriate sexual communications with multiple clients. Moreover, Lockshin had significant mental-health problems, he withdrew from treatment against the advice of his treatment professionals, and his counselor testified that he would be "very apprehensive" about recommending that Lockshin be permitted to continue practicing law if he did not take his counseling seriously.

{¶ 19} We have held that an attorney who engages in a course of conduct that involves dishonesty, fraud, deceit, or misrepresentation must serve an actual suspension from the practice of law for an appropriate period of time. Disciplinary Counsel v. Fowerbaugh , 74 Ohio St.3d 187, 658 N.E.2d 237 (1995), syllabus. In Disciplinary Counsel v. Gildee , 134 Ohio St.3d 374, 2012-Ohio-5641, 982 N.E.2d 704, we imposed a two-year suspension, with the second year stayed on conditions, based on an attorney's failure to deliver funds that her client was entitled to receive, falsification of a document in an attempt to justify that failure, and false representation to the relator regarding the status of the payment. We also imposed that sanction on an attorney who engaged in seven incidents of shoplifting and attempted to mislead the relator by making false statements and omitting relevant information during the ensuing disciplinary investigation. Cincinnati Bar Assn. v. Moore , 143 Ohio St.3d 252, 2015-Ohio-2488, 36 N.E.3d 171.

{¶ 20} Because Benbow not only engaged in an inappropriate sexual relationship with a client but also engaged in a course of dishonest conduct involving multiple false denials and lies under oath, we agree that a two-year suspension, with the second year stayed on the conditions recommended by the board, is the appropriate sanction in this case.

{¶ 21} Accordingly, Brian William Benbow is suspended from the practice of law in Ohio for two years, with the second year stayed on the conditions that he engage in no further misconduct, remain in compliance with the OLAP contract that the signed on September 27, 2017, and any extension thereto, and serve a one-year period of monitored probation in accordance with Gov.Bar R. V(21). If Benbow fails to comply with a condition of the stay, the stay will be lifted and he will serve the full two-year suspension. Costs are taxed to Benbow.

Judgment accordingly.

O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, and DeWine, JJ., concur.

DeGenaro, J., not participating.


source: Caselaw Access Project

license: Public Domain

text:
    The STATE of Ohio, Appellant and Cross-Appellee, v. AMISON, Appellee and Cross-Appellant.
    No. 2017-0887
    Supreme Court of Ohio.
    Submitted April 10, 2018 Decided July 24, 2018
    Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Gregory Ochocki, Assistant Prosecuting Attorney, for appellant and cross-appellee.
    Mark A. Stanton, Cuyahoga County Public Defender, and Paul Kuzmins, Assistant Public Defender, for appellee and cross-appellant, Vance G. Amison.
    {¶ 1} The judgment of the court of appeals is reversed on the authority of State v. Paige , 153 Ohio St.3d 214, 2018-Ohio-813, 103 N.E.3d 800.
    O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, DeWine, and DeGenaro, JJ., concur.


text:
    IN RE POLIZZI
    2018-0777
    Supreme Court of Ohio.
    August 27, 2018
    CASE ANNOUNCEMENTS
    DISCIPLINARY CASES
    Sua sponte, Anthony John Polizzi Jr., Attorney Registration No. 0090170, last known business address in North Royalton, Ohio, found in contempt for failure to file an affidavit of compliance on or before July 9, 2018.


text:
    OHIO HIGH SCHOOL ATHLETIC ASSN. v. RUEHLMAN
    2018-1200
    Supreme Court of Ohio.
    August 27, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   In Prohibition. On relator's motion for emergency stay and expedited alternative writ. Motion granted. The following briefing schedule is set for presentation of evidence and filing of briefs pursuant to S.Ct.Prac.R. 12.05. Respondent shall file an answer within three days of the date of this entry, relator shall file a merit brief and evidence within seven days of the filing of respondent's answer, respondent shall file a merit brief and evidence within seven days of the filing of relator's brief, and relator may file a reply brief within three days after the filing of respondent's merit brief. Enforcement of the August 15, 2018 temporary restraining order is stayed pending resolution of this case.

Fischer, J., concurs in part and dissents in part and would grant the motion for expedited alternative writ, and grant the motion for emergency stay in part and deny the stay of the trial court's temporary restraining order.

O'Connor, C.J., dissents and would grant a peremptory writ.

O'Donnell, J., dissents, with an opinion.

O'DONNELL, J., dissenting.

{¶ 1} I would deny the stay and the request for an alternative writ of prohibition in this case. The trial judge, Robert Ruehlman, granted a temporary restraining order with respect to implementation of the Competitive Balance Rules and found that the Ohio High School Athletic Association acted arbitrarily by drafting Competitive Balance Rules that failed to consider whether a particular school's team was competitive, and how those rules would affect Catholic schools whose students came from various feeder schools. Competitive Balance involves the formula used to determine a school's placement in a particular division for tournaments.

{¶ 2} This court previously held that OHSAA is "an unincorporated association, and the decisions of the tribunals of such association with respect to its internal affairs will, in the absence of mistake, fraud, collusion or arbitrariness, be accepted by the courts as conclusive." State ex rel. Ohio High School Athletic Assn. v. Judges of Court of Common Pleas, 173 Ohio St. 239, 181 N.E.2d 261 (1962), paragraph three of the syllabus.

{¶ 3} However, courts of this state have exercised jurisdiction in cases involving a suspension for improper recruitment of football players ( Massillon City School Dist. v. Ohio High School Athletic Assn., 5th Dist. Stark No. 7247, 1987 Ohio App. LEXIS 9541, at *6-7, 1987 WL 19827 (Nov. 5, 1987) ), and, in a separate case, involving a refusal to leave a meeting, attempting to control the meeting, and mispresenting facts to a national office ( Biesiada v. Ohio Soccer Assn. N., 8th Dist. Cuyahoga No. 65880, 1994 Ohio App. LEXIS 3348 (July 28, 1994) ).

{¶ 4} Since the "arbitrary" exception finding to quasi-judicial decision making has already been made by the trial court when it issued the temporary restraining order in this case, there is no reason to grant an alternative writ of prohibition on the question of the application of the "arbitrary" exception. Because the trial court has already found that the exception applies, the court has jurisdiction in this instance. Accordingly, I would deny the writ.


text:
    IN RE Application of DUKE ENERGY, OHIO, INC.
    2018-0973
    Supreme Court of Ohio.
    August 24, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On motion of Duke Energy Ohio, Inc., for leave to intervene as appellee. Motion granted.


text:
    OHIO HIGH SCHOOL ATHLETIC ASSN. v. RUEHLMAN
    2018-1200
    Supreme Court of Ohio.
    August 24, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   In Prohibition. Sua sponte, respondent shall file a response, if any, to relator's motion for emergency stay and expedited alternative writ no later than 9:00 a.m. on Monday, August 27, 2018.


text:
    IN RE Application of DUKE ENERGY, OHIO, INC.
    2018-0712
    Supreme Court of Ohio.
    August 24, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On motion of Duke Energy Ohio, Inc., for leave to intervene as appellee.

Motion granted.


text:
    OHIO STATE BAR ASSN. v. KLOSK
    2018-0533
    Supreme Court of Ohio.
    August 28, 2018
    CASE ANNOUNCEMENTS
    DISCIPLINARY CASES
    On report of the Board on the Unauthorized Practice of Law. On motion to supplement the record. Motion granted.


text:
    STATE EX REL. BOLZENIUS v. FRANKLIN CTY. BD. OF ELECTIONS
    2018-1221
    Supreme Court of Ohio.
    August 28, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   In Mandamus. Sua sponte, respondents ordered to file their answer to the complaint by Friday, August 31, 2018. The case shall otherwise proceed in accordance with S.Ct.Prac.R. 12.08. No requests or stipulations for extension of time shall be accepted in this case, and the clerk's office shall refuse to accept for filing any request or stipulation for extension of time. Pursuant to S.Ct.Prac.R. 12.08(C), all documents filed in this case shall be served on the date of filing by personal service, facsimile transmission, or e-mail.


text:
    IN RE STRIFF
    2018-1179
    Supreme Court of Ohio.
    August 28, 2018
    CASE ANNOUNCEMENTS
    DISCIPLINARY CASES
    On certified entry of felony conviction. Christopher William Striff Jr., Attorney Registration No. 0085421, last known business address in Delta, Ohio, suspended from the practice of law for an interim period.


text:
    FIROR v. LYDON
    2018-0799
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. HAZEL
    2018-0672
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    WADE v. MANCUSO
    2018-0803
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. MAGWOOD
    2018-0805
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    U.S. BANK NATL. ASSN. v. CONRAD
    2018-0834
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    AYERS v. CLEVELAND
    2018-0852
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    APPEALS ACCEPTED FOR REVIEW
    Cause accepted on proposition of law No. I.
    French, Fischer, and DeGenaro, JJ., would also accept the cause on proposition of law No. II.
    O'Donnell, Kennedy, and DeWine, JJ., dissent.


text:
    STATE v. HAWTHORNE
    2018-0838
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
    O'Donnell and Kennedy, JJ., dissent.


author: French, J., not participating.

text:
    GALLICK v. FRANKLIN CTY. BD. OF REVISION
    2018-0848
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   French, J., not participating.


text:
    PIETRANGELO v. LORAIN CTY. PRINTING & PUBLISHING CO.
    2018-0851
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


author: Kennedy, J., dissents.

text:
    R.T. v. KNOBELOCH
    2018-0793
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   Kennedy, J., dissents.


text:
    STATE v. SHEARER
    2018-0819
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    LOVELAND CITY SCHOOL DIST. BD. OF EDN. v. SYMMES TWP. BD. OF TRUSTEES
    2018-0837
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   Kennedy, J., dissents.


author: DeGenaro, J., not participating.

text:
    STATE v. LEE
    2018-0850
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
    Fischer and DeWine, JJ., dissent.
   DeGenaro, J., not participating.


author: DeWine, J., dissents.

text:
    STATE v. STUTLER
    2018-0791
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
    O'Connor, C.J., and Fischer, J., dissent and would accept the cause on proposition of law No. II.
   DeWine, J., dissents.


text:
    STATE v. SCHOENLEIN
    2018-0807
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. LOVE
    2018-0842
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
    French, J., dissents and would accept the cause and hold the cause for the decision in 2017-1547 and 2017-1701, State v. Cupp.


text:
    STATE v. STEELMAN
    2018-0855
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


author: O'Donnell, J., dissents.

text:
    STATE v. TAYLOR
    2018-0797
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    APPEALS ACCEPTED FOR REVIEW
    Cause accepted and held for the decisions in 2017-0186, State v. Dunson, and 2017-1579 and 2017-1609, State v. Braden.
   O'Donnell, J., dissents.


text:
    IN RE S.S.
    2018-0686
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   Kennedy, J., dissents.


text:
    STATE v. ROBERTSON
    2018-0795
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. KING
    2018-0800
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
    Motion for summary judgment denied.


text:
    STATE v. DEWEES
    2018-0835
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. TUCKER
    2018-0840
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. WINE
    2018-0847
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    BRYANT v. INDUS. POWER SYS., INC.
    2018-0841
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    BARNARD v. TURNER
    2018-0915
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. SAAG
    2018-0957
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    WILLIAMS v. SCHNEIDER
    2018-0726
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On appellant's motion to stay all common pleas court proceedings that involve distribution of the disputed funds pending Supreme Court appeal. Motion denied as moot.


text:
    OLIVER v. MARYSVILLE
    2018-0864
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


author: Fischer, J., not participating.

text:
    STATE v. YAVORCIK
    2018-0899
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
    O'Donnell and DeGenaro, JJ., dissent.
   Fischer, J., not participating.


author: O'Connor, C.J., not participating.

text:
    STATE v. JOHNSON
    2018-0945
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   O'Connor, C.J., not participating.


text:
    STATE v. KOSTO
    2018-0876
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
    O'Donnell and French, JJ., dissent.


text:
    STATE v. WILLIAMS
    2018-0929
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. BROWNLEE
    2018-0912
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   DeGenaro, J., not participating.


text:
    IN RE J.L.
    2018-0967
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE EX REL. GUILFOYLE v. INDUS. COMM.
    2018-1099
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    MEDIATION MATTERS
    The following case has been referred to mediation under S.Ct.Prac.R. 19.01.


text:
    WATERFALL VICTORIA MASTER FUND 2008-1 v. RITTENHOUSE
    2018-0857
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   DeGenaro, J., not participating.


text:
    MCLAUGHLIN v. ANDY'S COIN LAUNDRIES, L.L.C.
    2018-0887
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. JOHNSON
    2018-0930
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   Fischer, J., not participating.


text:
    STATE v. HARDMAN
    2018-0931
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   DeGenaro, J., not participating.


text:
    STATE v. MARTIN
    2018-0952
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    DEAN v. STATE
    2018-0859
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    SUDBERRY v. DEPT. OF REHAB. & CORR.
    2018-0932
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. THOMPSON
    2018-0938
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. JONES
    2018-0947
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
   DeGenaro, J., not participating.


text:
    STATE v. SANDS
    2018-0963
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE EX REL. DEMELLWEEK v. INDUS. COMM.
    2018-0499
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    MEDIATION MATTERS
    The following cases have been returned to the regular docket under S.Ct.Prac.R. 19.01. The appellant in each case shall file a brief within 40 days, and the parties shall otherwise proceed in accordance with S.Ct.Prac.R. 16.02 through 16.07. As provided in S.Ct.Prac.R. 16.07, the court may dismiss these cases or take other action if the parties fail to timely file merit briefs.


text:
    STATE v. JIVIDEN
    2018-0863
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    ROWETON v. WILLIS
    2018-0880
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW


text:
    STATE v. HARRIS
    2018-0946
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    APPEALS NOT ACCEPTED FOR REVIEW
    Motion for stay denied.
   Fischer, J., not participating.


text:
    AYERS v. CLEVELAND
    2018-0852
    Supreme Court of Ohio.
    August 31, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On motions for admission pro hac vice of Russell Ainsworth, Ruth Brown, and Michael Kanovitz. Motions denied. The attorneys are stricken from the case. On appellees' motion to strike notice of appeal and memoranda in support of jurisdiction. Motion denied as moot.


text:
    DISCIPLINARY COUNSEL v. MCDANIEL
    2018-0687
    Supreme Court of Ohio.
    August 31, 2018
    CASE ANNOUNCEMENTS
    DISCIPLINARY CASES
    Thomas C. McDaniel III, Attorney Registration No. 0056259, last known address in Tucson, Arizona, found in contempt for failure to file an affidavit of compliance on or before July 23, 2018.


text:
    STATE EX REL. BOLZENIUS v. FRANKLIN CTY. BD. OF ELECTIONS
    2018-1221
    Supreme Court of Ohio.
    August 31, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   In Mandamus. On motion for leave to intervene of Loretta Settlemeyer and Robert Wall. Motion granted.


text:
    STATE EX REL. HARRIS v. RUBINO
    2018-1129
    Supreme Court of Ohio.
    August 30, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   In Mandamus. Review of relator's reply brief reveals that it fails to comply with S.Ct.Prac.R. 16.04(B)(1). Sua sponte, pages 21 through 28 of the reply brief are stricken, as they are in excess of the 20-page limit imposed on content for a reply brief.


text:
    STATE EX REL. PILARCZYK v. GEAUGA CTY.
    2018-0728
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    MEDIATION MATTERS
    The following cases have been returned to the regular docket under S.Ct.Prac.R. 19.01. The appellant in each case shall file a brief within 40 days, and the parties shall otherwise proceed in accordance with S.Ct.Prac.R. 16.02 through 16.07. As provided in S.Ct.Prac.R. 16.07, the court may dismiss these cases or take other action if the parties fail to timely file merit briefs.


text:
    STATE EX REL. BEYER v. AUTONEUM N. AM., INC.
    2018-0833
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    MEDIATION MATTERS
    The following cases have been returned to the regular docket under S.Ct.Prac.R. 19.01. The appellant in each case shall file a brief within 40 days, and the parties shall otherwise proceed in accordance with S.Ct.Prac.R. 16.02 through 16.07. As provided in S.Ct.Prac.R. 16.07, the court may dismiss these cases or take other action if the parties fail to timely file merit briefs.


text:
    STATE EX REL. NATIONWIDE CHILDREN'S HOSP. v. INDUS. COMM.
    2018-0888
    Supreme Court of Ohio.
    August 29, 2018
    CASE ANNOUNCEMENTS
    MEDIATION MATTERS
    Pursuant to R.C. 2710.06(B)(1), the court has been notified that the parties in the following case have reached a settlement. The case is returned to the regular docket under S.Ct.Prac.R. 19.01. Within 60 days, the appellant shall file either an application for dismissal or a merit brief in accordance with the Supreme Court Rules of Practice. The case will be dismissed for want of prosecution if an application for dismissal or a merit brief is not filed within 60 days.


text:
    STATE v. RIEVES
    2018-0770
    Supreme Court of Ohio.
    September 5, 2018
    CASE ANNOUNCEMENTS
    MISCELLANEOUS DISMISSALS
    Appellant has not filed a memorandum in support of jurisdiction, due August 31, 2018, and therefore has failed to prosecute this cause with the requisite diligence. Sua sponte, cause dismissed.


text:
    STATE EX REL. PERRY TOWNSHIP BD. OF TRUSTEES v. HUSTED
    2018-1261
    Supreme Court of Ohio.
    September 5, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   In Mandamus. Sua sponte, respondents shall file their answer to the complaint by Friday, September 7, 2018, relator shall file its brief and evidence by Monday, September 10, 2018, respondents shall file their brief and evidence by Thursday, September 13, 2018, and relator may file a reply brief by Friday, September 14, 2018. The case shall otherwise proceed in accordance with S.Ct.Prac.R. 12.08. No requests or stipulations for extension of time shall be accepted in this case, and the clerk's office shall refuse to accept for filing any request or stipulation for extension of time. Pursuant to S.Ct.Prac.R. 12.08(C), all documents filed in this case shall be served on the date of filing by personal service, facsimile transmission, or e-mail.


text:
    STATE v. WERE
    2018-1162
    Supreme Court of Ohio.
    September 4, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   On appellant's motion for an order requiring all pleadings to be filed under seal. Motion granted.


text:
    STATE EX REL. MAXCY v. LUCAS CTY. BD. OF ELECTIONS
    2018-1242
    Supreme Court of Ohio.
    August 31, 2018
    CASE ANNOUNCEMENTS
    MOTION AND PROCEDURAL RULINGS
   In Mandamus. Sua sponte, respondents shall file their answer to the complaint by Tuesday, September 4, 2018. The case shall otherwise proceed in accordance with S.Ct.Prac.R. 12.08. No requests or stipulations for extension of time shall be accepted in this case, and the clerk's office shall refuse to accept for filing any request or stipulation for extension of time. Pursuant to S.Ct.Prac.R. 12.08(C), all documents filed in this case shall be served on the date of filing by personal service, facsimile transmission, or e-mail.


author: PIPER, J.

text:
    IN RE: ADOPTION OF A.L.S.
    NO. CA2017-09-146
    Court of Appeals of Ohio, Twelfth District, Butler County.
    February 9, 2018
    Donald J. Meyer, Jr., 1005 Harrison Avenue, Harrison, Ohio 45030, for appellant-respondent
    Barbara Thornell Ginn, 8595 Beechmont Avenue, Suite 103, Cincinnati, Ohio 45255, for appellees-petitioners.
   PIPER, J.

{¶ 1} Respondent-appellant, A.N.D. ("Mother"), appeals a decision of the Butler County Court of Common Pleas, Probate Division, granting the petition of petitioners-appellees, G.G.S. and S.F.S. ("Petitioners"), for adoption of Mother's minor child, A.L.S.

{¶ 2} Mother was 17 years old when she gave birth to A.L.S. on September 13, 2012. At the time of A.L.S.'s birth, Mother resided at a children's home in Wooster, Ohio. A.L.S. was initially placed in independent foster care alongside her older brother. During this placement, Mother attended scheduled visitation with the two children and completed parenting classes. Mother and the two children moved to independent living at her grandmother's residence in January 2013. When mother reached the age of majority in February 2013, the juvenile court awarded Mother custody of her children. In September 2013, while appearing at a hearing in the Hamilton County Juvenile Court, Mother indicated she was afraid for her safety and her children's safety due to her assistance with an investigation by the Federal Bureau of Investigation. Mother also acknowledged she had been driving the children without a valid driver's license.

{¶ 3} Following the hearing, the Hamilton County Juvenile Court placed the two children with Mother's grandmother.

Mother often visited the children during this period. In October 2013, the juvenile court placed A.L.S. with Petitioners, the child's paternal great-grandparents. On February 14, 2014, with Mother's consent, the juvenile court awarded legal custody of A.L.S. to Petitioners. The order provided Mother have reasonable visitation. In April 2014, Mother visited A.L.S. at her grandmother's residence. After this visitation, neither Mother nor Petitioners arranged for any further visitation. The parties provided conflicting testimony regarding Mother's efforts to arrange visitation.

{¶ 4} Mother testified she had varying success in contacting Petitioners and was often rebuffed in any efforts to schedule visitation. Petitioners testified Mother only contacted them three times in the 26 months following the grant of legal custody. In 2014, Mother twice left telephone messages requesting visitation. However, Mother failed to provide any contact information so that visitation could be arranged. Petitioners testified more than a year passed before any further contact occurred. Mother had several different telephone numbers and resided in Ohio, Nevada, California, and Kentucky. Petitioners have resided at the same residence and maintained the same telephone number throughout the pendency of this case.

{¶ 5} On June 8, 2016, Mother filed a petition for custody of A.L.S. in the Hamilton County Juvenile Court. On August 2, 2016, Petitioners filed a petition to adopt A.L.S. in the Butler County Probate Court. The adoption petition alleged that Mother's consent was unnecessary because Mother failed, without justifiable cause, (1) to have more than de minimis contact with A.L.S. in the year preceding the filing of the petition and (2) to maintain or support A.L.S., as required by law or judicial decree, in the year immediately preceding the filing of the petition.

{¶ 6} On November 8, 2016, the probate court held a hearing on the adoption petition. At the conclusion of the hearing, the judge recused himself and the case was transferred to a different judge. The attorneys for the parties stipulated that the new judge could review the record of the hearing and take judicial notice of the evidence presented. On March 21, 2017, the court held an additional hearing on the adoption petition. On September 5, 2017, the probate court granted Petitioners' adoption petition, finding Mother's consent unnecessary and adoption in the best interest of A.L.S.

{¶ 7} Mother timely appealed this decision.

{¶ 8} Assignment of Error No. 1:

{¶ 9} THE TRIAL COURT ERRED BY FINDING BY CLEAR AND CONVINCING EVIDENCE THAT RESPONDENT, A.N.D., FAILED WITHOUT JUSTIFIABLE CAUSE TO PROVIDE MORE THAN DE MINIMIS CONTACT WITH THE MINOR, A.L.S[.] FOR A PERIOD OF AT LEAST ONE YEAR IMMEDIATELY PRECEDING EITHER THE FILING OF THE ADOPTION PETITION OR THE PLACEMENT OF THE MINOR IN THE HOME OF PETITIONER[S]. R.C. 3107.07(A) [.]

{¶ 10} Assignment of Error No. 2:

{¶ 11} THE TR[IA]L COURT ERRED BY FINDING BY CLEARING AND CONVINCING EVIDENCE THAT RESPONDENT A.N.D. FAILED WITHOUT JUSTIFIABLE CAUSE TO PROVIDE FOR THE MAINTENANCE AND SUPPORT OF THE MINOR AS REQUIRED BY LAW OR JUDICIAL DECREE FOR A PERIOD OF AT LEAST ONE YEAR IMMEDIATELY PRECEDING THE FILING OF THE PETITION IN THIS PROCEEDING[.] R.C. 3107.07(A).

{¶ 12} Mother contends the probate court erred in finding she failed, without justifiable cause, to have more than de minimis contact with A.L.S. for a period of at least one year immediately preceding the filing of the adoption petition. Mother argues she satisfied the communication requirement of R.C. 3107.07(A) because Petitioners rebuffed her repeated attempts to contact A.L.S. and she filed her petition for custody prior to the filing of the adoption petition. Mother further contends the probate court erred in finding she failed, without justifiable cause, to provide for the maintenance and support of A.L.S. for a period of at least one year immediately preceding the filing of the adoption petition. Specifically, Mother argues the probate court erred by finding such failure was not a result of justifiable cause. Collectively, Mother claims the probate court erred in finding her consent was not required for adoption based on the foregoing arguments.

{¶ 13} The right of natural parents to the care and custody of their children is one of the most precious and fundamental in law. In re Adoption of C.M.F. , 12th Dist. Butler Nos. CA2013-06-090 and CA2013-06-091, 2013-Ohio-4719, 2013 WL 5777150, ¶ 8. An adoption permanently terminates the parental rights of a natural parent. In re Adoption of L.C.W. , 12th Dist. Butler No. CA2014-08-169, 2015-Ohio-61, 2015 WL 135320, ¶ 10. Therefore, "[b]ecause adoption terminates these rights, Ohio law requires parental consent to an adoption unless a specific statutory exemption exists." In re Adoption of A.N.B. , 12th Dist. Preble No. CA2012-04-006, 2012-Ohio-3880, 2012 WL 3648014, ¶ 5.

{¶ 14} R.C. 3107.07(A) governs consent to adoption and provides consent is not necessary from "[a] parent of a minor, when it is alleged in the adoption petition and the court, after proper service of notice and hearing, finds by clear and convincing evidence that the parent has failed without justifiable cause to provide more than de minimis contact with the minor or to provide for the maintenance and support of the minor as required by law or judicial decree for a period of at least one year immediately preceding either the filing of the adoption petition or the placement of the minor in the home of the petitioner."

{¶ 15} Thus, pursuant to the statute, "the burden is on the petitioner to establish by clear and convincing evidence that (1) the parent has failed to provide more than de minimis contact with the child or to provide maintenance or support for the child for the requisite one-year period and (2) that the failure was without justifiable cause." In re M.G.B.-E. , 12th Dist. Clinton No. CA2016-06-017, 2016-Ohio-7912, 2016 WL 6948299, ¶ 56. Clear and convincing evidence is "that measure or degree of proof which is more than a mere 'preponderance of the evidence,' but not to the extent of such certainty as is required 'beyond a reasonable doubt' in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established." Cross v. Ledford , 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. Once the petitioner demonstrates the parent's failure under the statute, "the opposing parent must show some facially justifiable cause for such failure. * * * The burden of proof, however, remains with the petitioner." In re M.G.B.-E. at ¶ 56.

{¶ 16} A probate court has broad discretion in making the factual determinations under the first step in the statutory analysis and these factual findings will not be disturbed absent an abuse of discretion. Id. at ¶ 57. An abuse of discretion is more than an error of law or judgment. Rather, it suggests the "trial court's decision was unreasonable, arbitrary or unconscionable." State v. Perkins , 12th Dist. Clinton No. CA2005-01-002, 2005-Ohio-6557, 2005 WL 3359153, ¶ 8. "A review under the abuse-of-discretion standard is a deferential review." State v. Morris , 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 14.

{¶ 17} If a probate court makes a finding that the parent failed to support or contact the children, the probate court must next determine whether the petitioner demonstrated a lack of justifiable cause for the failure by clear and convincing evidence. In re M.G.B.-E. at ¶ 57. This determination "will not be disturbed on appeal unless such determination is against the manifest weight of the evidence." In re Adoption of M.B. , 131 Ohio St.3d 186, 2012-Ohio-236, 963 N.E.2d 142, ¶ 24. "In determining whether a judgment is against the manifest weight of the evidence, we must review the entire record, weigh the evidence and all reasonable inferences, consider witness credibility, and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that there must be a reversal of the judgment and an order for a new trial." (Internal quotations omitted.) In re Adoption of L.C.W. , 2015-Ohio-61, 2015 WL 135320 at ¶ 14. In so doing, we must be mindful the probate court "is in the best position to observe the demeanor of the parties and assess the credibility and accuracy of the testimony." In re Adoption of C.A.L. , 2015-Ohio-2014, 35 N.E.3d 44, ¶ 29.

{¶ 18} The probate court determined that Mother's consent to the adoption was not necessary because Mother failed, without justifiable cause, to have more than de minimis contact with A.L.S. for a period of at least one year immediately preceding the filing of the adoption petition. Mother does not dispute proper service of notice and of the hearing date. Therefore, the dispute only concerns the probate court's factual findings. Mother contends she had more than de minimis contact with A.L.S. and any circumstances suggesting otherwise are based on justifiable cause due to the substantial interference of Petitioners.

{¶ 19} Mother argues our opinion in In re Adoption of A.J.B. , 12th Dist. Butler No. CA2008-12-306, 2009-Ohio-2200, 2009 WL 1278433, stands for the proposition that her filing of the custody petition satisfied her communication requirement, and thus, her consent to the adoption was necessary. In A.J.B. , we found a father's pending motion for allocation of parental rights and responsibilities preserved the necessity of his consent. Id. at ¶ 27. Shortly after the filing of the father's motion, the mother married her live-in boyfriend who then filed an adoption petition for the child. Id. at ¶ 4.

{¶ 20} Contrary to Mother's claim, our holding in A.J.B. should not be construed as establishing a bright-line rule that the filing of a motion related to parenting or custody constitutes more than de minimis contact pursuant to R.C. 3107.07(A). Rather, parentage motions differ from custody motions and impact adoption proceedings differently. See generally In re H.N.R. , 145 Ohio St.3d 144, 2015-Ohio-5476, 47 N.E.3d 803. Further, our opinion in A.J.B. specifically distinguishes cases with different factual situations. See A.J.B. at ¶ 17-24, distinguishing In re Adoptions of Doyle , 11th Dist. Ashtabula Nos. 2003-A-0071 and 2003-A-0072, 2004-Ohio-4197, 2004 WL 1778821 and In re Serre , 77 Ohio Misc.2d 29, 665 N.E.2d 1185 (C.P.1996). In A.J.B. , this court focused on the timing of a series of events leading up to the filings, specifically noting that the mother was served in the father's parentage action before placement occurred. In re A.J.B. at ¶ 24. More akin to the circumstances in Doyle and Serre , Petitioners had placement of A.L.S. with them for approximately three years before Mother's motion for custody. Therefore, our holding in A.J.B. is distinguishable from the facts of this case.

{¶ 21} The probate court did not abuse its discretion in finding Petitioners presented clear and convincing evidence that Mother failed, without justifiable cause, to have more than de minimis contact with A.L.S. Each Petitioner testified Mother failed to exercise her visitation rights after April 2014. While Petitioners were not aggressive in facilitating contact between Mother and A.L.S., they attempted to return Mother's telephone messages and tried to setup meetings with Mother. However, Petitioners faced difficulties in contacting Mother, as she had multiple phone numbers and addresses during the relevant period. Petitioners further testified that Mother never attempted to finalize arrangements to meet with Petitioners despite the known placement of A.L.S. with Petitioners and the ability and knowledge of how to contact them. See In re Adoption of J.F.R.-W. , 7th Dist. Belmont No. 16 BE 0045, 2017-Ohio-1265, 2017 WL 1231754, ¶ 44-45 (stating non-custodial parent's knowledge of residence of child weighs heavily against finding custodial parent prevented contact); see also In re Adoption of P.L.H. , 151 Ohio St.3d 554, 2017-Ohio-5824, 91 N.E.3d 698, ¶ 33-38 (finding putative father did not willfully abandon birth mother when he offered financial support during pregnancy, maintained communication with numerous text messages, including exchanging "I love yous" and providing assurances of support, and demonstrated continued involvement throughout the pregnancy). Therefore, the probate court did not abuse its discretion in finding that Petitioners presented clear and convincing evidence that Mother failed to have more than de minimis contact with A.L.S.

{¶ 22} We defer to the probate court in determining factual disputes, such as the lack of Mother's contact and the cause for communication failures. As explained above, Mother testified regarding several unreturned telephone calls. However, Petitioners testified Mother's attempted contact was sporadic and infrequent. Petitioners attempted to return phone calls when possible, but faced difficulty because mother's telephone number and address often changed and she frequently failed to provide new contact information. Mother attempted to persuade the court her failure to have more than de minimis contact with A.L.S. was due to Petitioners' interference with attempted communication.

{¶ 23} The Ohio Supreme Court has held that "[s]ignificant interference by a custodial parent with communication between the non-custodial parent and the child, or significant discouragement of such communication, is required to establish justifiable cause for the non-custodial parent's failure to communicate with the child." In re Adoption of Holcomb , 18 Ohio St.3d 361, 481 N.E.2d 613 (1985), paragraph three of the syllabus, superseded by statute on other grounds as stated by In re Adoption of T.R.S. , 7th Dist. Belmont No. 13 BE 43, 2014-Ohio-3808, 2014 WL 4347621, ¶ 16-17. Where a custodial parent's substantial efforts have "deprived the non-custodial parent of the opportunity of enjoying a meaningful relationship with his [or her] child * * * the law should not further reward [the custodial parent's] discordant efforts by countenancing a termination of the non-custodian's parental rights in a non-consensual adoption proceeding." In re M.G.B.-E. , 2016-Ohio-7912, 2016 WL 6948299, ¶ 61. A probate court is not restricted to focusing solely on the one-year statutory period in making such determination. Id.

{¶ 24} It is clear Mother's credibility repeatedly became an issue while testifying at the hearings. Mother testified that adoption should not be granted because of racial issues. While the probate court acknowledged Mother's racial concerns, it determined that there was "no evidence" presented to support her suggestion that such issues existed. Shortly thereafter, Mother refused to address a question posed by the probate court. In response, the probate court found it necessary to instruct her to answer. Additionally, in response to Mother testifying inconsistently with her prior testimony, the court found it necessary to remind Mother that she was under oath. Therefore, the probate court clearly identified issues with respect to Mother's testimony.

{¶ 25} The probate court weighed the conflicting evidence, observed the demeanor of the parties, and assessed the credibility and accuracy of the testimony. Petitioners testified they had legitimate concerns regarding Mother's contact with A.L.S. considering the large gaps in communication, and therefore, wanted to meet with Mother before scheduling visitation. Petitioners explained Mother never followed up with their request and even when Mother left messages, she failed to provide necessary contact information for Petitioners to return her calls.

{¶ 26} During the entire pendency of the case, Mother had knowledge of Petitioners' address and contact information. Mother knew where A.L.S. was residing, but did not seek to assert her visitation rights at any point during A.L.S.'s placement with Petitioners beyond a few sporadic telephone messages. Even assuming a lack of consistency or urgency by Petitioners in returning phone calls, the communication issues between Mother and Petitioners do not equate to a substantial interference providing justifiable cause for Mother's failure to have more than de minimis contact. Therefore, the probate court's finding that Petitioners presented clear and convincing evidence that Mother did not have justifiable cause in failing to have more than de minimis contact with A.L.S. is not against the manifest weight of the evidence.

{¶ 27} We next turn to Mother's maintenance and support argument. Mother argues her pregnancy with another child prevented her from providing maintenance and support for A.L.S., but articulated no information as to why her pregnancy prevented her from providing maintenance and support. Considering we found the probate court did not err with respect to its de minimis contact finding, we find Mother's maintenance and support argument moot. R.C. 3107.07(A) provides a parent's consent to adoption is not necessary if the probate court finds that the petitioners demonstrated by clear and convincing evidence "that the parent has failed without justifiable cause to provide more than de minimis contact with the minor or to provide for the maintenance and support of the minor as required by law or judicial decree for a period of at least one year immediately preceding * * * the filing of the adoption petition * * *." (Emphasis added.)

{¶ 28} Accordingly, Mother's first and second assignments of error are overruled.

{¶ 29} Assignment of Error No. 3:

{¶ 30} THE [PROBATE] COURT'S DECISION THAT IT IS IN THE BEST INTEREST OF A.L.S. PURSUANT TO R.C. 3107.161(B) TO GRANT THE ADOPTION PETITION HEREIN IS CONTRARY TO THE WEIGHT OF THE EVIDENCE.

{¶ 31} Mother argues the probate court's best interest finding was against the manifest weight of the evidence.

{¶ 32} A trial court's determination regarding the best interest of a child in an adoption proceeding must be made after consideration of the factors provided in R.C. 3107.161. In re Adoption of A.M.L. , 12th Dist. Warren No. CA2015-01-004, 2015-Ohio-2224, 2015 WL 3542549, ¶ 9. According to this provision:

the court shall consider all relevant factors, which include, but are not limited to, all of the following:
(1) The least detrimental available alternative for safeguarding the child's growth and development;
(2) The age and health of the child at the time the best interest determination is made and, if applicable, at the time the child was removed from the home;
(3) The wishes of the child in any case in which the child's age and maturity makes this feasible;
(4) The duration of the separation of the child from a parent;
(5) Whether the child will be able to enter into a more stable and permanent family relationship, taking into account the conditions of the child's current placement, the likelihood of future placements, and the results of prior placements;
(6) The likelihood of safe reunification with a parent within a reasonable period of time;
(7) The importance of providing permanency, stability, and continuity of relationships for the child;
(8) The child's interaction and interrelationship with the child's parents, siblings, and any other person who may significantly affect the child's best interest;
(9) The child's adjustment to the child's current home, school, and community;
(10) The mental and physical health of all persons involved in the situation;
(11) Whether any person involved in the situation has been convicted of, pleaded guilty to, or accused of any criminal offense involving any act that resulted in a child being abused or neglected [or other specific crimes].

R.C. 3107.161(B).

{¶ 33} The person contesting an adoption petition has the burden of providing "material evidence needed to determine what is in the best interest of the child" and the burden of establishing "that the child's current placement is not the least detrimental available alternative." R.C. 3107.161(C). For these purposes, "least detrimental available alternative" means "the alternative that would have the least long-term negative impact on the child." R.C. 3107.161(A). However, the petitioner retains the burden of proving that adoption is in the best interest of the child.

{¶ 34} We will not reverse a probate court's best interest determination unless the probate court abused its discretion. In re Adoption of Cotner , 12th Dist. Fayette Nos. CA2002-02-004 and CA2002-02-005, 2002-Ohio-5145, 2002 WL 31155151, ¶ 7. The probate court need not enumerate its findings for each factor, but the probate court's decision must clearly indicate that it considered the statutory factors. In re Adoption of A.M.L. at ¶ 11.

{¶ 35} Mother contends the probate court's best interest finding was against the manifest weight of the evidence because she has two other children in her care, her caseworker did not notice neglect while observing her care for such children, and she desires to parent and provide for A.L.S.

{¶ 36} In its decision, the probate court listed the statutory best interest factors and indicated that it had considered the factors in determining whether the adoption was in A.L.S.'s best interest. The probate court reviewed the evidence presented and determined that granting the adoption petition was in the child's best interest.

{¶ 37} The probate court noted that as of the date of its adoption decision, A.L.S. was four and one-half years old, in good physical health, and involved in a number of activities. The probate court conducted an in camera interview with A.L.S. and determined the child was not sufficiently mature to express her wishes regarding the adoption. The probate court found A.L.S. has had sporadic interaction with Mother during the three and one-half years before the filing of the adoption petition and has had no contact since June 2014. The court noted A.L.S. needs permanency and that adoption allows the child "to enter into a more stable and permanent family relationship, taking into account the conditions of the child's current placement, the likelihood of future placements, and the result of prior placements." The probate court found residing with Petitioners was the best living arrangement for A.L.S., and even if the probate court denied the adoption petition, legal custody and placement was unlikely to change, therefore remaining with Petitioners.

{¶ 38} The probate court further found the only practical way to provide A.L.S. with the permanency of a stable home was by granting the adoption petition. The probate court found that A.L.S. is thoroughly integrated into Petitioners' immediate and extended family and the child has adjusted well to her current home, school, and community. The probate court found Petitioners are in good mental and physical health and A.L.S. appears to be truly happy and content.

{¶ 39} Upon consideration of the foregoing, the probate court found the factors weigh heavily in favor of granting the adoption petition. In so doing, the probate court noted only a few factors that weigh against granting the petition. The trial court determined Petitioners demonstrated by clear and convincing that granting the adoption petition was in the best interest of A.L.S.

{¶ 40} After careful consideration of the record in this case, we do not find the probate court abused its discretion in making its best interest determination. A.L.S. has been placed with Petitioners since October 2013 and competent, credible evidence exists to support the probate court's finding that it was unlikely that placement would change even if the adoption did not take place where Mother has unstable housing and several arrest warrants pending. Mother has failed to have more than de minimis contact with the child without justifiable cause, while at the same time, A.L.S. is fully integrated into Petitioners' family and into their home. A.L.S. considers Petitioners as her parents and appears happy and content. A.L.S. needs the stability of a permanent home, and the only way to achieve such is by granting the adoption petition. Therefore, the probate court did not abuse its discretion in granting the adoption petition, and its decision is not against the manifest weight of the evidence.

{¶ 41} Accordingly, Mother's third assignment of error is overruled.

{¶ 42} Judgment affirmed.

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

      A.L.S.'s biological father, C.P., did not appeal the probate court's decision.

      Mother contends the probate court erred in granting the adoption petition because her custody action was filed in the juvenile court approximately two months prior to the filing of the adoption petition. We note Mother raised this argument in her reply brief, but failed to raise it in her original brief on appeal. Therefore, we need not address it. Meadowwood Manor, Inc. v. Ohio Dept. of Health , 12th Dist. Brown No. CA2006-08-010, 2007-Ohio-2067, 2007 WL 1248183, ¶ 27. Nonetheless, we find Mother's contention without merit based on the current precedent of this district and the particular facts of this case. See In re M.G.B.-E. , 12th Dist. Clinton No. CA2016-06-017, 2016-Ohio-7912, 2016 WL 6948299, ¶ 45-49 (applying Ohio Supreme Court precedent to hold that a probate court need only refrain from exercising its authority to rule on an adoption petition without the consent of a parent when questions of parentage are pending in a juvenile court), discussing In re Adoption of Pushcar , 110 Ohio St.3d 332, 2006-Ohio-4572, 853 N.E.2d 647.

      We note P.L.H. involves the question of whether a putative father willfully abandoned a birth mother, whereas the present case involves the issue of whether a mother had more than de minimis contact with her child. The two questions require the weighing of a different set of facts by a court in making its findings.


author: S. POWELL, P.J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Douglas C. CHANEY, Defendant-Appellant.
    NO. CA2017-07-118
    Court of Appeals of Ohio, Twelfth District, Warren County.
    February 12, 2018
    David P. Fornshell, Warren County Prosecuting Attorney, Kirsten Brandt, 520 Justice Drive, Lebanon, Ohio 45036, for plaintiff-appellee
    Lisa M. Wells, 401 Madison Avenue, Covington, Kentucky 41011, for defendant-appellant
   S. POWELL, P.J.

{¶ 1} Defendant-appellant, Douglas C. Chaney, appeals from the decision of the Warren County Court of Common Pleas ordering him to pay restitution in the amount of $83,783.96 to Procter & Gamble after he pled guilty to one count of grand theft. For the reasons outlined below, we affirm.

{¶ 2} On January 3, 2017, the Warren County Grand Jury returned an indictment charging Chaney with one count of grand theft in violation of R.C. 2913.02(A)(2), a fourth-degree felony, when, pursuant to R.C. 2913.02(B)(2), "the value of the property or services stolen is seven thousand five hundred dollars or more and is less than one hundred fifty thousand dollars * * *." The charge arose after it was discovered Chaney, a subcontractor employed at the Procter & Gamble headquarters located in Mason, Ohio, had stolen hundreds of items from Procter & Gamble between April 24, 2012 to March 4, 2016 that he then sold to buyers over the internet. Once an item was sold, Chaney would then package and ship the stolen item to the buyer using Procter & Gamble's packaging and shipment services. The items Chaney stole from Procter & Gamble included, but were not limited to, interface cards, ink cartridges, ink sets, adapters, and other business equipment Chaney had access to as part of his employment at the Procter & Gamble headquarters.

{¶ 3} On January 20, 2017, Chaney was arraigned and subsequently released on bond after entering a plea of not guilty. Approximately two months later, on March 9, 2017, Chaney appeared before the trial court and entered a guilty plea to the one count of grand theft as charged. After conducting the necessary Crim.R. 11 plea colloquy, the trial court accepted Chaney's guilty plea and scheduled the matter for a sentencing hearing. The trial court then stated, as it relates to the issue of restitution and the need for a restitution hearing, the following:

We had a discussion about what the restitution should be in the case. There appears to be a dispute about what the restitution should be, which means we may have to have a hearing. If we have two sets of numbers, Mr. Chaney that the sides present to me, normally that's how it works and I just either pick between the numbers or pick my own number regarding restitution, but it may be in this case, that we have to have a hearing on the issue of restitution, which does not really affect your sentence in terms of what kind of community control sanctions that you receive but the law in the State of Ohio says that I have to make restitution part of the sentence so we will continue the sentencing if necessary in progress, if we have to have a longer restitution hearing sometime in excess of the time allotted * * *.

{¶ 4} On April 19, 2017, after accepting sentencing memorandum from both parties, the trial court held a restitution hearing to determine the proper amount of restitution Chaney owed to Procter & Gamble, if any. At this hearing, the state submitted a binder to the trial court labeled Exhibit 1 that contained receipts and account records dating April 24, 2012 through March 4, 2016 that showed Chaney had netted a grand total of $83,783.96 by selling the hundreds of items he had stolen from Procter & Gamble to buyers over the internet. Chaney stipulated to the authenticity of the receipts and account records contained within Exhibit 1, raised no objection to the trial court's decision to admit the receipts and account records contained within Exhibit 1 as evidence, and otherwise failed to present any opposing evidence contrary to the receipt and account records contained within Exhibit 1 on his own behalf. Besides raising a legal challenge regarding the amount of restitution he owed, Chaney rested and the trial court took the matter under advisement.

{¶ 5} The following day, the trial court issued a decision finding the proper amount of restitution Chaney owed to Procter & Gamble was the state's requested amount of $83,783.96 finding that sum represented the economic loss Procter & Gamble incurred as a result of Chaney's actions. Upon entering its decision on restitution, the trial court then sentenced Chaney to serve five years of community control, the conditions of which required Chaney to serve 90 days in jail, pay the restitution order to Procter & Gamble in full, and successfully complete a corrective thinking class. The trial court also ordered Chaney to pay court costs.

{¶ 6} Chaney now appeals from the trial court's decision ordering him to pay $83,783.96 in restitution to Procter & Gamble, raising the following single assignment of error for review.

{¶ 7} THE TRIAL COURT ERRED BY ORDERING RESTITUTION IN THE AMOUNT OF $83,783.96.

{¶ 8} In his single assignment of error, Chaney argues the trial court's decision was improper in that it was not supported by sufficient evidence. Specifically, Chaney argues that "without an actual accounting for the replacement cost of the stolen property with new property of like kind and quality, the trial court did not possess the requisite information it needed to order restitution." We disagree.

{¶ 9} At the outset, we note that Chaney challenges the trial court's decision finding the parties improperly directed it to apply R.C. 2913.61(D) to determine the specific amount of restitution he owed to Procter & Gamble. Pursuant to that statute:

The following criteria shall be used in determining the value of property or services involved in a theft offense:
(1) The value of an heirloom, memento, collector's item, antique, museum piece, manuscript, document, record, or other thing that has intrinsic worth to its owner and that either is irreplaceable or is replaceable only on the expenditure of substantial time, effort, or money, is the amount that would compensate the owner for its loss.
(2) The value of personal effects and household goods, and of materials, supplies, equipment, and fixtures used in the profession, business, trade, occupation, or avocation of its owner, which property is not covered under division (D)(1) of this section and which retains substantial utility for its purpose regardless of its age or condition, is the cost of replacing the property with new property of like kind and quality.
(3) The value of any real or personal property that is not covered under division (D)(1) or (2) of this section, and the value of services, is the fair market value of the property or services. As used in this section, "fair market value" is the money consideration that a buyer would give and a seller would accept for property or services, assuming that the buyer is willing to buy and the seller is willing to sell, that both are fully informed as to all facts material to the transaction, and that neither is under any compulsion to act.

{¶ 10} According to Chaney, the trial court was required to conduct an analysis pursuant to R.C. 2913.61(D) to properly determine the amount of restitution he owed to Procter & Gamble, if any. That statute, however, generally applies to questions involving the degree of the theft offense the offender can be convicted of based on the value of the property or services involved in the crime. In turn, just as the trial court found, while the trial court must look to R.C. 2913.61(D) to evaluate the overall economic loss involved in determining the maximum amount of restitution that can be awarded, which, in this case, was $150,000, the trial court "is not limited to the strict criteria contained in that statute in calculating the restitution figure." See State v. Miller , 12th Dist. Butler No. CA2007-11-295, 2008-Ohio-5661, 2008 WL 4766722, ¶ 9. Therefore, contrary to Chaney's claim otherwise, and as aptly noted by the state, "[t]he court did not refuse to consider R.C. 2913.61(D) in determining restitution. The court merely stated its analysis was broader than R.C. 2913.61(D)."

{¶ 11} Although the trial court must look to R.C. 2913.61(D) in determining the maximum amount of restitution that can be awarded, it is R.C. 2929.18(A)(1) that "grants a trial court the authority to order restitution by an offender to the victim, or any survivor of the victim, in an amount commensurate with the victim's economic loss." State v. Geldrich , 12th Dist. Warren No. CA2015-11-103, 2016-Ohio-3400, 2016 WL 3257788, ¶ 7. As defined by R.C. 2929.01(L), the term "economic loss" means "any economic detriment suffered by a victim as a direct and proximate result of the commission of an offense * * *," including any property loss. "Economic loss," however, does not include "non-economic loss or any punitive or exemplary damages." R.C. 2929.01(L).

{¶ 12} Due process "requires that the amount of restitution ordered bear a reasonable relationship to the actual loss suffered by the victim." State v. Stamper , 12th Dist. Butler No. CA2009-04-115, 2010-Ohio-1939, 2010 WL 1757941, ¶ 17. In turn, the amount of restitution that may be awarded to the victim is limited to the "actual loss or damage caused by the offender and must be established to a reasonable degree of certainty." State v. Collins , 2015-Ohio-3710, 41 N.E.3d 899, ¶ 32, citing State v. Dyer , 12th Dist. Butler No. CA2005-05-109, 2006-Ohio-3537, 2006 WL 1880499, ¶ 30. In determining such an award, R.C. 2929.18(A)(1) permits the trial court to base its decision on an amount recommended by the victim, the offender, a presentence investigation report, estimates or receipts indicating the cost of repairing or replacing property, or any other information, so long as the amount does not exceed the actual economic loss suffered by the victim.

{¶ 13} After a thorough review of the record, we find no error in the trial court's decision ordering Chaney to pay $83,783.96 in restitution to Procter & Gamble. Although Chaney claims otherwise, the record firmly supports the trial court's decision based on the receipts and account records contained within Exhibit 1-an exhibit which Chaney stipulated to authenticity and did not otherwise object to its admission at the trial court's restitution hearing-showing Chaney netted that exact amount by selling hundreds of items he had stolen from Procter & Gamble to buyers over the internet between April 24, 2012 to March 4, 2016. This is true despite the fact that Procter & Gamble did not submit a victim impact statement to the trial court or conduct an actual accounting of the replacement cost of the hundreds of items Chaney sole. It is well-established that a victim's actual economic loss can be established through documentary evidence or testimony, including that of the victim. Geldrich , 2016-Ohio-3400, 2016 WL 3257788 at ¶ 10.

{¶ 14} In so holding, we once again note that R.C. 2929.18(A)(1) permits the trial court to base its decision on the amount of restitution to award on an amount recommended by the victim, the offender, as well as a presentence investigation report, estimates or receipts indicating the cost of repairing or replacing property, or any other information, so long as the amount does not exceed the actual economic loss suffered by the victim. That is exactly what occurred here. Therefore, because we find no error in the trial court's decision ordering Chaney to pay $83,783.96 in restitution to Procter & Gamble-an amount that is surely less than the true economic loss suffered by Procter & Gamble when considering Chaney also used Procter & Gamble's packaging and shipment services to package and ship the hundreds of stolen items he stole from Procter & Gamble to his buyers-Chaney's single assignment of error is without merit and overruled.

{¶ 15} Judgment affirmed.

RINGLAND and HENDRICKSON, JJ., concur.

      Pursuant to Loc.R. 6(A), the court hereby sua sponte removes this case from the accelerated calendar for purposes of issuing this opinion.

      As noted above, Chaney was charged with grand theft in violation of R.C. 2913.02(A)(2), a fourth-degree felony, when, pursuant to R.C. 2913.02(B)(2), "the value of the property or services stolen is seven thousand five hundred dollars or more and is less than one hundred fifty thousand dollars * * *."


author: M. POWELL, J.

text:
    VILLAGE OF FAYETTEVILLE, Plaintiff-Appellee, v. Michael S. ADKINS, Defendant-Appellant.
    NO. CA2017-05-004
    Court of Appeals of Ohio, Twelfth District, Brown County.
    February 12, 2018
    Cecelia J. Potts, 750 South High Street, P.O. Box 474, Mt. Orab, Ohio 45154, for plaintiff-appellee
    Michael S. Adkins, 5269 Highway 7, West Liberty, Kentucky 41472, defendant-appellant, pro se
   M. POWELL, J.

{¶ 1} Defendant-appellant, Michael Adkins, appeals his conviction in the Brown County Municipal Court for speeding.

{¶ 2} On November 12, 2016, appellant was charged with speeding in violation of a Fayetteville Village ordinance after Fayetteville Lieutenant John Pullin used a stationary radar unit and measured appellant traveling 65 m.p.h. in a 40 m.p.h. zone. Appellant appeared in the Fayetteville Mayor's Court for trial in January 2017. At trial, appellant asked the magistrate whether the proceedings were being recorded. The magistrate advised that they were not. Appellant asked that the proceedings be recorded and offered to record them himself. The magistrate advised that recording was not allowed. Appellant was found guilty of speeding and ordered to pay $150. He appealed to the Brown County Municipal Court.

{¶ 3} A bench trial was held in the municipal court on March 14, 2017. At the beginning of trial, and again by motion filed on April 5, 2017, appellant moved to dismiss the case against him, arguing that the failure of the mayor's court to record the proceedings violated his due process rights. The municipal court denied the motion, finding that a mayor's court is not required to record its proceedings because it is not a court of record.

{¶ 4} At trial, Lieutenant Pullin testified on behalf of the village. Appellant did not call any witnesses and did not testify on his own behalf. The officer's testimony confirmed that the mayor's court magistrate did not record that court's proceedings despite appellant's request that they be recorded. By entry filed on April 5, 2017, the municipal court found appellant guilty of speeding and ordered him to pay $150.

{¶ 5} Appellant now appeals, raising six assignments of error, which present two primary issues for review. The first issue challenges the municipal court's denial of appellant's motion to dismiss. The second issue challenges appellant's speeding conviction.

{¶ 6} Appellant first argues the municipal court erred in failing to dismiss the case against him, in light of the mayor's court's failure to record its proceedings.

Appellant asserts that a mayor's court is required to record all proceedings before it pursuant to May.R. 11(B)(2), Crim.R. 19(D)(7), and Crim.R. 22. Appellant further asserts he was prejudiced by the mayor's court's failure to record the proceedings because he could not use the transcript of the proceedings to show that Lieutenant Pullin changed his testimony during trial in the municipal court.

{¶ 7} Mayor's court proceedings are governed by the United States and Ohio Constitutions, R.C. Chapter 1905, and the Mayor's Court Education and Procedural Rules as promulgated by the Ohio Supreme Court. Office of Montgomery Cty. Pub. Defender v. Rosencrans , 111 Ohio St.3d 338, 2006-Ohio-5793, 856 N.E.2d 250, ¶ 2. In Rosencrans , the Ohio Supreme Court held that notwithstanding the provision of May.R. 11(B)(2) that "[a]n audio system to record mayor's court proceedings should be provided and tapes of proceedings should be maintained[,]" the rule "does not require that mayor's court proceedings be recorded." Id. at ¶ 31. Thus, May.R. 11(B)(2) does not impose a duty on the mayor and village to record mayor's court proceedings. Id.

{¶ 8} Crim.R. 19(D)(7) provides that "[e]xcept as otherwise provided by law, all proceedings before a magistrate shall be recorded in accordance with procedures established by the court." In turn, Crim.R. 22 provides that "if requested by any party[,] all proceedings [for petty offenses] shall be recorded."

{¶ 9} We are not persuaded that Crim.R. 19(D)(7) applies to mayor's court proceedings given its phrase "except as otherwise provided by law" and the supreme court's holding in Rosencrans that May.R. 11(B)(2) does not require the recording of mayor's court proceedings. With regard to Crim.R. 22, the supreme court has held that "[b]y its explicit terms, the recordation requirement of Crim.R. 22 applies to all proceedings." (Emphasis sic.) State v. Grewell , 45 Ohio St.3d 4, 8, 543 N.E.2d 93 (1989).

{¶ 10} Nevertheless, even if Crim.R. 22 is construed as requiring the recording of mayor's court proceedings, we find the municipal court did not err in denying appellant's motion to dismiss.

{¶ 11} R.C. 1905.24 provides that in appeals from a mayor's court,

the clerk of the mayor's court shall make a certified transcript of the proceedings and deliver such transcript together with the original papers used on the trial, to the court to which the appeal is taken, within fifteen days from the rendition of the judgment appealed from.
Upon receipt of the transcript and the papers mentioned in this section, the clerk of the court to which the appeal is taken shall file them and docket the appeal.

{¶ 12} Thus, if Crim.R. 22 is construed as requiring that mayor's court proceedings be recorded, such a recording would necessarily be part of the transcript of the mayor's court referred to in R.C. 1905.24. Consequently, failure to record the proceedings and include the recording in the transcript delivered to the municipal court on appeal, renders the transcript incomplete. However, the failure of the mayor's court clerk to deliver a complete transcript to the municipal court does not affect the jurisdiction of the municipal court to hear the appeal. "[F]ailure to include the documents required by R.C. 1905.24 in the transcript of the proceedings affects whether the appeal was properly docketed in the municipal court, rather than whether jurisdiction was properly acquired." Blue Ash v. Hensley , 2014-Ohio-3428, 17 N.E.3d 1180, ¶ 10. In other words, the docketing in municipal court of an incomplete transcript of the mayor's court proceedings would be a defect in the institution of the proceedings as referred to in Crim.R. 12(C)(1).

{¶ 13} " Crim.R. 12(C) [1] provides that any objections based on defects in the institution of the proceedings must be raised in a pretrial motion." Id. at ¶ 19. Crim.R. 12(D) requires such motions to be "made within thirty-five days after arraignment or seven days before trial, whichever is earlier." At the earliest, appellant moved to dismiss his speeding charge at the beginning of his trial in the municipal court. He therefore failed to timely raise his motion to dismiss based on the mayor's court lack of recording. Hensley at ¶ 20 ; Crim.R. 12(D). Consequently, the municipal court did not err in failing to dismiss appellant's speeding charge on the basis of Crim.R. 19(D)(7) or Crim.R. 22.

{¶ 14} Appellant further asserts he was prejudiced by the mayor's court's failure to record the proceedings because he could not use the transcript of the proceedings to show that Lieutenant Pullin changed his testimony during trial in the municipal court.

{¶ 15} We first note that a mayor's court is not a court of record. State ex rel. Office of the Montgomery Cty. Pub. Defender v. Siroki , 108 Ohio St.3d 334, 2006-Ohio-1065, 843 N.E.2d 778, ¶ 8 ; Fayetteville v. Watson , 12th Dist. Brown No. CA92-03-006, 1992 WL 281093, *1 (Oct. 12, 1992). Accordingly, an appeal from a mayor's court to the municipal court proceeds as a trial de novo. R.C. 1905.25 ; Watson at *1. We further note that at the beginning of trial and in response to appellant's concern the officer might change his testimony, the municipal court stated, "You can testify that he changed his testimony if you want." As stated earlier, appellant did not testify or present any other evidence.

{¶ 16} The Ohio Supreme Court has held that notwithstanding the recording requirement under Crim.R. 22, an appellant waives any error by failing to invoke the procedure of App.R. 9(C) or App.R. 9(E) and making no attempt to reconstruct the missing portions of the record. See State v. Tyler , 50 Ohio St.3d 24, 553 N.E.2d 576 (1990) ; State v. Keenan , 81 Ohio St.3d 133, 689 N.E.2d 929 (1998). The supreme court has further held that when a trial court records proceedings but the recordation is of poor technical quality, such that it fails to accurately record the proceedings in total detail, there is no denial of due process when the defendant fails to avail himself of the remedies available under App.R. 9. See State v. Osborne , 49 Ohio St.2d 135, 359 N.E.2d 78 (1976) ; State v. Chauncey , 8th Dist. Cuyahoga No. 75465, 1999 WL 608801 (Aug. 12, 1999). Appellant made no attempt to use App.R. 9 to reconstruct Lieutenant Pullin's testimony before the mayor's court and show prejudice. Hence, the issue whether he was prejudiced by the mayor's court's failure to record the proceedings is waived. See Tyler ; State v. Chapple , 12th Dist. Warren No. CA92-11-100, 1993 WL 156181 (May 17, 1993).

{¶ 17} In light of the foregoing, we find the municipal court did not err in denying appellant's motion to dismiss. In reaching this decision, we recognize that appellant was acting pro se in the proceedings below. However, "the right of self-representation is not a license for failure to comply with the relevant rules of procedure and substantive law." State v. Palmer , 12th Dist. Warren No. CA2005-08-097, 2006-Ohio-2712, 2006 WL 1493617, ¶ 9. In turn, a criminal defendant appearing pro se is expected, as attorneys are, to abide by the rules of evidence and procedure, regardless of his familiarity with them. State v. Dixon , 12th Dist. Butler No. CA2016-04-074, 2016-Ohio-7438, 2016 WL 6188089, ¶ 21. In other words, pro se litigants are not to be accorded greater rights and are bound to accept the results of their own mistakes and errors, including those related to correct legal procedures. Id.

{¶ 18} Appellant's first through fifth assignments of error are accordingly overruled.

{¶ 19} Appellant next challenges his speeding conviction in the municipal court. Appellant suggests his conviction is supported by insufficient evidence or is against the manifest weight of the evidence because the radar unit used by Lieutenant Pullin had only been calibrated by the manufacturer and thus, the state failed to establish the radar's accuracy and reliability.

{¶ 20} The record shows that on November 12, 2016, Lieutenant Pullin was operating a stationary radar unit on State Route 68 just north of Ohio Street in the village. The posted speed limit for this particular portion of the road is 40 m.p.h. Lieutenant Pullin testified he observed appellant's vehicle entering the village, traveling at a speed he initially estimated to be in excess of the posted speed limit. The vehicle entered the radar field and the officer received a reading that appellant's vehicle was traveling 67 m.p.h. The officer locked the vehicle's speed in at 65 m.p.h.

{¶ 21} At trial, Lieutenant Pullin testified he received 40 hours of radar training at the police training academy and was field trained by the village chief of police. The officer conceded the radar unit was last calibrated by the manufacturer when it was purchased 18 months before appellant's speeding incident. The officer explained, however, that radar units "don't get calibrated unless they don't match the testing of the calibration," when they are tested by the officer using the radar. Lieutenant Pullin then testified to the efforts undertaken to ensure that the radar was working properly on November 12, 2016. He first stated that when he turns the radar on, it goes through and passes a self-test on its own. Following this, he performed a two-tuning-fork process for conducting a stationary calibration check. Using both tuning forks, the radar unit registered the correct speeds, indicating that the radar unit was properly calibrated. Lieutenant Pullin further testified that the radar only clocked appellant's vehicle and that there was nothing in the direct line of sight between the radar and the vehicle that would have altered the read-out of the radar.

{¶ 22} Ohio courts have held that "when two tuning forks are used to ascertain the accuracy of the radar unit, additional proof of the accuracy of the tuning forks is not necessary. This is because each tuning fork corroborates the accuracy of the other, and it is highly unlikely that the radar unit and each tuning fork would be inaccurate to the same degree." State v. Mansour , 12th Dist. Butler No. CA2010-08-198, 2011-Ohio-4339, 2011 WL 3820706, ¶ 28, quoting State v. Bechtel , 24 Ohio App.3d 72, 73, 493 N.E.2d 318 (9th Dist.1985). Once again, we are persuaded by this reasoning, and we therefore conclude that Lieutenant Pullin's testimony was sufficient to establish that the device was working accurately and reliably on the day of the citation. Mansour at ¶ 28.

{¶ 23} After reviewing the record, we further find the municipal court did not lose its way and create a manifest miscarriage of justice by believing the testimony of Lieutenant Pullin. The officer's testimony concerning his visual estimation of appellant's speed, his calibration of the radar, and the readings from the radar, coupled with his four years of experience and his training, constitutes some competent, credible evidence that appellant was traveling 65 m.p.h. in a 40 m.p.h. zone. See State v. Gellenbeck , 12th Dist. Fayette No. CA2008-08-030, 2009-Ohio-1731, 2009 WL 975746. Thus, appellant's speeding conviction is not against the manifest weight of the evidence. Further, it is supported by sufficient evidence. Id. (determination that a conviction is not against the manifest weight of the evidence is dispositive of the issue of sufficiency).

{¶ 24} Appellant's sixth assignment of error is accordingly overruled.

{¶ 25} Judgment affirmed.

RINGLAND, P.J., and PIPER, J., concur.

      Inexplicably, appellant asserts in one of his assignments of error that "The Trial Court erred in stating its (sic) not a court of record." However, the municipal court specifically denied appellant's motion to dismiss on the ground that Crim.R. 22 does not apply to proceedings in a mayor's court because that court is not a court of record.