author: S. POWELL, P.J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Mohammed LAGHAOUI, Defendant-Appellant.
    NO. CA2017-06-098
    Court of Appeals of Ohio, Twelfth District, Warren County.
    June 11, 2018
    David P. Fornshell, Warren County Prosecutor, Kirsten A. Brandt, 520 Justice Drive, Lebanon, OH 45036, for plaintiff-appellee
    Stephan D. Madden, 810 Sycamore Street, Sixth Floor, Cincinnati, OH 45202, for defendant-appellant
   S. POWELL, P.J.

{¶ 1} Defendant-appellant, Mohammed Laghaoui ("Laghaoui"), appeals from his conviction in the Warren County Court of Common Pleas after a jury found him guilty of a variety of felony offenses, including attempted aggravated murder of a law enforcement officer, which resulted in him being sentenced to an aggregate 36-year prison term. For the reasons outlined below, we affirm.

{¶ 2} On July 5, 2016, the Warren County Grand Jury returned a multi-count indictment charging Laghaoui with attempted aggravated murder of a law enforcement officer, felonious assault, improperly discharging a firearm into a habitation, tampering with evidence, and domestic violence, among others. The charges arose after Laghaoui used a Century Arms RAS-47 (a civilian variant of an AK-47) to shoot Deputy Katie Barnes of the Warren County Sheriff's Office, his father, Abdessadek Laghaoui, and shot at his neighbor, Jason Ratliff, after he and his brother, Lhoucine Laghaoui, got into an argument about cleaning the dishes. Laghaoui, who is originally from Morocco, was then just 19 years old.

{¶ 3} On July 6, 2016, Laghaoui appeared for his arraignment and entered a plea of not guilty. After Laghaoui entered his not guilty plea, the trial court set bond at $2,000,000 and appointed Laghaoui an attorney. The following week, on July 13, 2016, Laghaoui requested the trial court order a competency evaluation to determine whether he was competent to stand trial. The trial court granted Laghaoui's motion and scheduled a hearing on the matter for September 14, 2016.

{¶ 4} On August 12, 2016, attorney Nadeem Quraishi ("Attorney Quraishi") filed a notice of substitution of counsel for Laghaoui, thereby becoming Laghaoui's counsel of record. It is undisputed that Attorney Quraishi was hired by Laghaoui's father, Abdessadek. As noted above, Laghaoui's father was one of the victims Laghaoui was charged with shooting in this case.

{¶ 5} On September 14, 2016, the trial court held the previously scheduled hearing on Laghaoui's competency to stand trial. At this hearing, the trial court heard testimony from a single witness, Dr. Jennifer O'Donnell, a psychologist with Forensic Evaluation Service Center, Inc., who testified that Laghaoui was not competent to stand trial based on her "strong sense, clinical sense" that "there was something going on" with Laghaoui given his guardedness and his general unwillingness to engage in a conversation with her while he was being held in the Warren County Jail regarding the charges against him, the basis for those charges, and any possible defense(s) he may have had. As Dr. O'Donnell testified, "I tried to let the Court know I have a sense that there's something going on here." This opinion, as Dr. O'Donnell testified, was based on the limited information then available to her, which came mostly from her discussion with Laghaoui's parents.

{¶ 6} Despite Dr. O'Donnell's testimony, the trial court found Laghaoui was competent to stand trial. In so holding, the trial court found Dr. O'Donnell's testimony "clearly established" that Laghaoui understood the "nature of the proceedings and the objective of these proceedings." The trial court found the same to be true regarding whether Laghaoui could assist in his defense. As the trial court stated, "I do find that Dr. O'Donnell limited her opinion to a sense or a feeling based upon her meeting with [Laghaoui] and that that sense or feeling is not going to rise * * * to a preponderance of the evidence, and that that presumption [that Laghaoui was competent to stand trial] is not overcome."

{¶ 7} On October 21, 2016, Laghaoui filed a notice with the trial court joining his not guilty plea with a plea of not guilty by reason of insanity, which was based primarily on his admitted prior use of synthetic cannabinoids. Several months later, on March 10, 2017, the state filed a motion in limine requesting the trial court exclude testimony from Laghaoui's intended expert witness, Dr. William Fantegrossi, "concerning any alleged psychiatric or psychological conditions of the defendant that are related to his voluntary ingestion of drugs;" specifically, the synthetic cannabinoids XLR-11 and AB-CHMINACA.

{¶ 8} After holding a hearing on the matter, the trial court granted the state's motion in limine. In reaching this decision, the trial court noted Dr. Fantegrossi's testimony that the relationship between synthetic cannabinoids and their potential to induce psychosis had not yet been subject to peer review and "is not generally accepted in the scientific community, due to its relatively new emergence as a field of study." The trial court further noted:

Ultimately, Dr. Fantegrossi stated that it cannot be determined to a reasonable degree of scientific certainty that synthetic cannabinoids, such as the ones ingested by [Laghaoui], induce psychosis, just that there is a relationship and that he "would not be surprised" if the drugs induced psychosis.

Concluding, the trial court stated:

The Court finds that while Dr. Fantegrossi certainly spoke competently and thoroughly about his field of study and the emerging research that has been completed, this theory remains largely unsubstantiated as yet. For this reason, the Court finds that this testimony cannot pass Daubert's reliability standard. As a result, the Court finds this testimony is therefore rendered inadmissible under Evid. R. 702.

{¶ 9} After granting the state's motion in limine, the matter proceeded to an eight-day jury trial. At trial, the jury heard testimony from several witnesses, including Deputy Barnes, Laghaoui's father, Abdessadek, and Laghaoui's brother, Lhoucine. After both parties rested, the trial court provided the jury with its final jury instructions, which included an instruction on intoxication that "[t]he defense of insanity cannot be successfully established simply on the basis that the condition resulted from the use of intoxicants or drugs where such use is not shown to be habitual or chronic." Following deliberations, the jury returned a verdict finding Laghaoui guilty of the above-named offenses, thereby rejecting Laghaoui's claims that he acted in self-defense and/or was not guilty by reason of insanity. The trial court then sentenced Laghaoui to an aggregate 36-year prison term.

{¶ 10} Laghaoui now appeals from his conviction, raising six assignments of error for review.

{¶ 11} Assignment of Error No. 1:

{¶ 12} THE TRIAL COURT ERRED WHEN IT FOUND DEFENDANT-APPELLANT TO BE COMPETENT TO STAND TRIAL.

{¶ 13} In his first assignment of error, Laghaoui argues the trial court erred by finding him competent to stand trial. We disagree.

{¶ 14} Due process and fundamental fairness demand that a criminal defendant who is not competent to stand trial not be tried and convicted of an offense. State v. Murphy , 173 Ohio App.3d 221, 2007-Ohio-4535, 877 N.E.2d 1034, ¶ 28 (12th Dist.), citing State v. Braden , 98 Ohio St.3d 354, 2003-Ohio-1325, 785 N.E.2d 439, ¶ 114. Pursuant to R.C. 2945.37(G), "[a] defendant is presumed to be competent to stand trial." A defendant who claims incompetency to stand trial has the burden of proving his incompetence by a preponderance of the evidence. State v. Bullocks , 12th Dist. Warren No. CA2010-01-008, 2010-Ohio-2705, 2010 WL 2373264, ¶ 6, citing State v. Stanley , 121 Ohio App.3d 673, 685, 700 N.E.2d 881 (1st Dist.1997) ; and State v. Williams , 23 Ohio St.3d 16, 19, 490 N.E.2d 906 (1986). "The preponderance of the evidence means that amount of evidence on one side which outweighs or is of greater probative value than that on the other." State v. Puckett , 12th Dist. Butler No. CA88-12-178, 1990 WL 44217, *2 (Apr. 16, 1990).

{¶ 15} An appellate court will not disturb a trial court's finding a defendant competent to stand trial if there was " 'some reliable, credible evidence supporting the trial court's conclusion that [the defendant] understood the nature and objective of the proceedings against him.' " State v. Dollar , 12th Dist. Butler No. CA2012-01-002, 2012-Ohio-5241, 2012 WL 5498016, ¶ 16, quoting Williams at 19, 490 N.E.2d 906. The adequacy of the "data relied upon by the expert who examined the [defendant] is a question for the trier of fact." Id. "Deference on these issues should be given 'to those who see and hear what goes on in the courtroom.' " State v. Were , 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 46, quoting State v. Cowans , 87 Ohio St.3d 68, 84, 717 N.E.2d 298 (1999).

{¶ 16} It is undisputed that Laghaoui failed to object to the trial court's decision finding him competent to stand trial. Because Laghaoui "failed to object to the competency finding at the trial court level, this court reviews this issue for plain error." In re Stone , 12th Dist. Clinton No. CA2002-09-035, 2003-Ohio-3071, 2003 WL 21373156, ¶ 10. "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). Plain error does not exist unless the error is obvious and but for the error, the outcome of the case would have been different. State v. Blacker , 12th Dist. Warren No. CA2008-07-094, 2009-Ohio-5519, 2009 WL 3350404, ¶ 39. "Notice of plain error is taken with the utmost caution and only under exceptional circumstances to prevent a manifest miscarriage of justice." State v. Rogers , 12th Dist., 2018-Ohio-1356, 110 N.E.3d 537, ¶ 24.

{¶ 17} Laghaoui argues the trial court erred by finding him competent to stand trial given Dr. O'Donnell's testimony that he was not competent to stand trial. In support, Laghaoui argues the trial court should have followed Dr. O'Donnell's "unequivocal opinion" that he was not competent to stand trial because her opinion was "uncontroverted by any other testimony or evidence." However, although Dr. O'Donnell was the lone witness to testify at the competency hearing, just as the trial court found, Dr. O'Donnell based her opinion on a "sense or a feeling" she had upon meeting with Laghaoui while he was being held in the Warren County Jail, during which he appeared guarded and exhibited a general unwillingness to engage in a conversation with her regarding the charges against him, the basis for those charges, and any possible defense(s) he may have had. As noted above, Dr. O'Donnell's opinion was limited to the information then available to her, the majority of which came from her discussion with Laghaoui's parents.

{¶ 18} As the trial court found, "that sense or feeling is not going to rise * * * to a preponderance of the evidence, and that that presumption [that Laghaoui was competent to stand trial] is not overcome." We find no error, let alone plain error, in the trial court's decision. This is because, as the Ohio Supreme Court has stated previously, " '[a] defendant may be emotionally disturbed or even psychotic and still be capable of understanding the charges against him and of assisting his counsel.' " State v. Were , 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263 at ¶ 47, quoting State v. Bock , 28 Ohio St.3d 108, 110, 502 N.E.2d 1016 (1986). In so holding, we note the generally well-established principle that "evidence tending to prove a fact does not necessarily become uncontroverted or uncontested simply because an opposing party does not present rebuttal evidence." Collins v. Collins , 12th Dist. Clinton No. CA2000-09-023, 2001 WL 1218900, *2 (Oct. 15, 2001). Therefore, because the trial court did not err by finding Laghaoui failed to meet his burden of proof requiring him to establish his incompetence by a preponderance of the evidence, Laghaoui's first assignment of error lacks merit and is overruled.

{¶ 19} Assignment of Error No. 2:

{¶ 20} THE TRIAL COURT ERRED WHEN IT FAILED TO INQUIRE AS TO DEFENSE COUNSEL'S POTENTIAL CONFLICT OF INTEREST.

{¶ 21} In his second assignment of error, Laghaoui argues the trial court erred by failing to inquire whether Attorney Quraishi had a possible conflict of interest given the fact that he was hired by Abdessadek, Laghaoui's father and one of the victims Laghaoui was charged with shooting. Laghaoui never raised the issue that his trial counsel had a possible conflict of interest. Nevertheless, "[w]here a trial court knows or reasonably should know of an attorney's possible conflict of interest in the representation of a person charged with a crime, the trial court has an affirmative duty to inquire whether a conflict of interest actually exists."

State v. Bai , 12th Dist. Butler No. CA2010-05-116, 2011-Ohio-2206, 2011 WL 1782113, ¶ 105, citing State v. Gillard , 64 Ohio St.3d 304, 595 N.E.2d 878 (1992), syllabus. Yet, even then, a trial court's failure to inquire into a possible conflict of interest does not automatically require "[a] retrial for failing to inquire into a possible conflict of interest is premature." State v. Gillard , 78 Ohio St.3d 548, 552, 679 N.E.2d 276 (1997). "Rather, reversal is mandated only if an actual conflict is found." Id. This is because "the United States Constitution is violated by an actual conflict of interest, not a possible one." Id. , citing Cuyler v. Sullivan , 446 U.S. 335, 348-350, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) ; and State v. Manross , 40 Ohio St.3d 180, 182, 532 N.E.2d 735 (1988).

{¶ 22} In order to establish that an actual conflict of interest existed, Laghaoui must demonstrate two elements. State v. West , 12th Dist., 2018-Ohio-640, 106 N.E.3d 96, ¶ 26. First, Laghaoui must show that " 'some plausible alternative defense strategy or tactic might have been pursued.' " Gillard , 78 Ohio St.3d. at 552, 679 N.E.2d 276, quoting United States v. Fahey , 769 F.2d 829, 836 (1st Cir.1985). Second, Laghaoui must " 'establish that the alternative defense was inherently in conflict with or not undertaken due to the attorney's other loyalties or interests.' " Id. , quoting Fahey at 836. Whether an actual conflict of interest existed is a mixed question of law and fact, subject to de novo review on appeal. Id. De novo appellate review means that this court independently reviews the record and affords no deference to a trial court's decision. State v. Walker , 10th Dist. Franklin No. 06AP-810, 2007-Ohio-4666, 2007 WL 2633791, ¶ 10.

{¶ 23} After a full and thorough review of the record, even if this court were to assume the trial court failed to act upon its affirmative duty to inquire whether Attorney Quraishi had a possible conflict of interest, Laghaoui has failed to demonstrate that an actual conflict of interest existed. In reviewing Laghaoui's appellate brief, Laghaoui does not identify any plausible alternative defense or tactic that Attorney Quraishi might have pursued at trial, nor does Laghaoui allege that some other plausible alternative defense or tactic was not undertaken due to Attorney Quraishi's other loyalties or interests, presumably to that of Laghaoui's father, Abdessadek. Simply stated, based on the record properly before this court, there is no evidence to suggest the fact that Abdessadek's hiring of Attorney Quraishi to represent Laghaoui impacted the defense strategy and tactics Attorney Quraishi pursued at trial; namely, that Laghaoui was acting in self-defense and/or was not guilty by reason of insanity. The defense strategy and tactics pursued by Attorney Quraishi were aligned with those of both Laghaoui and Laghaoui's father, who we note was called to testify as the trial court's own witness without objection. Therefore, because Laghaoui has failed to establish that an actual conflict of interest existed in this case, Laghaoui's second assignment of error lacks merit and is overruled.

{¶ 24} Assignment of Error No. 3:

{¶ 25} THE CONVICTION MUST BE REVERSED DUE TO IMPROPER JURY INSTRUCTIONS.

{¶ 26} In his third assignment of error, Laghaoui argues the trial court erred by providing the jury with an instruction on intoxication; specifically, that "[t]he defense of insanity cannot be successfully established simply on the basis that the condition resulted from the use of intoxicants or drugs where such use is not shown to be habitual or chronic." In support of this claim, Laghaoui argues the instruction on intoxication was improper since his "strongest argument in his defense was that he was not guilty by reason of insanity." According to Laghaoui, by instructing the jury that intoxication could not serve as a basis for insanity when there was insufficient evidence of intoxication, "the trial court essentially provided the jury with a confusing instruction" that prejudiced his defense. We disagree.

{¶ 27} The record indicates Laghaoui failed to raise this objection to the trial court below, other than to say that "it adds a layer to the instruction [on the defense of not guilty by reason of insanity] that isn't really required." Pursuant to Crim.R. 30(A), Laghaoui's failure to raise this objection, stating specifically the matter objected to and the grounds of the objection, waived all but plain error on appeal. State v. Glover , 12th Dist. Fayette No. CA2016-11-016, 2017-Ohio-7360, 2017 WL 3701246, ¶ 51. "With respect to an allegedly improper jury instruction, plain error exists only where, but for the error, the outcome of the trial would have been clearly different." State v. Roberts , 12th Dist. Butler No. CA2001-09-203, 2002-Ohio-4482, 2002 WL 2005691, ¶ 26, citing State v. Underwood , 3 Ohio St.3d 12, 444 N.E.2d 1332 (1983).

{¶ 28} The trial court "has discretion to determine whether the evidence is sufficient to require a jury instruction on intoxication." State v. Nields , 93 Ohio St.3d 6, 22, 752 N.E.2d 859 (2001), citing State v. Wolons , 44 Ohio St.3d 64, 541 N.E.2d 443 (1989). In determining whether there was sufficient evidence to support the trial court giving the jury an instruction on intoxication, such as the case here, "an appellate court should determine whether the record contains evidence from which reasonable minds might reach the conclusion sought by the instruction." State v. Davis , 12th Dist., 2016-Ohio-1166, 61 N.E.3d 650, ¶ 35, citing State v. Risner , 120 Ohio App.3d 571, 574, 698 N.E.2d 511 (3d Dist.1997).

{¶ 29} After a full and thorough review of the record, we find no error, let alone plain error, in the trial court's decision to provide the jury with the challenged instruction on intoxication. The record is clear that the state requested the trial court instruct the jury on intoxication in direct response to Laghaoui's argument regarding his intoxication as it related to his not guilty by reason of insanity defense; namely, that he was experiencing psychosis and hallucinations on the night in question that was a direct result of his admitted prior use of synthetic cannabinoids. Therefore, as noted by the state, to allow Laghaoui to raise the issue of intoxication without also instructing the jury on the limits of that defense would have prejudiced the state and otherwise improperly instructed the jury on the law applicable to the case at bar. Accordingly, while Laghaoui himself denied being intoxicated on the night in question, because the issue of Laghaoui's intoxication was raised as part of his not guilty by reason of insanity defense, the trial court did not err by providing the jury with the challenged instruction at issue. Laghaoui's third assignment of error is without merit and overruled.

{¶ 30} Assignment of Error No. 4:

{¶ 31} DEFENDANT-APPELLANT'S CONVICTION MUST BE REVERSED DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL.

{¶ 32} In his fourth assignment of error, Laghaoui argues he received ineffective assistance of counsel. We disagree.

{¶ 33} Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.

State v. Hendrix , 12th Dist. Butler No. CA2012-05-109, 2012-Ohio-5610, 2012 WL 5995043, ¶ 14. As a result, to prevail on an ineffective assistance of counsel claim, Laghaoui must show (1) that his trial counsel's performance fell below an objective standard of reasonableness and, (2) that he was prejudiced as a result. Strickland v. Washington , 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; State v. Burns , 12th Dist. Clinton No. CA2013-10-019, 2014-Ohio-4625, 2014 WL 5316515, ¶ 7. The failure to make an adequate showing on either prong is fatal to an ineffective assistance of counsel claim. State v. Zielinski , 12th Dist. Warren No. CA2010-12-121, 2011-Ohio-6535, 2011 WL 6382541, ¶ 50.

{¶ 34} As it relates to the first prong regarding his trial counsel's performance, Laghaoui must show Attorney Quraishi made errors so serious that he was not functioning as the "counsel" guaranteed a defendant by the Sixth Amendment to the United States Constitution. State v. Miller , 12th Dist. Clermont No. CA2011-04-028, 2012-Ohio-995, 2012 WL 764866, ¶ 27. On the other hand, as it relates to the second prong requiring a showing of prejudice, Laghaoui must establish that, but for Attorney Quraishi's errors, there is a reasonable probability that the result of trial would have been different. State v. Kinsworthy , 12th Dist. Warren No. CA2013-06-053, 2014-Ohio-1584, 2014 WL 1489250, ¶ 42. A "reasonable probability" is a probability that is sufficient to undermine confidence in the outcome. State v. Graves , 12th Dist. Clermont No. CA2015-03-022, 2015-Ohio-3936, 2015 WL 5671910, ¶ 31, citing Strickland at 694, 104 S.Ct. 2052.

{¶ 35} Laghaoui argues Attorney Quraishi was ineffective by requesting the trial court to instruct the jury on self-defense when his "primary defense" was that he was not guilty by reason of insanity. Laghaoui also argues Attorney Quraishi was ineffective for failing to object to testimony "relating to chemicals associated with him" that were seized pursuant to a search of his residence. Laghaoui's claims lack merit for the record indicates these decisions were strategic and employed by Attorney Quraishi in an effort to fashion the best defense against the serious nature of the charges levied against Lagaoui, including that of attempted aggravated murder of a law enforcement officer. It is not this court's role to second guess these strategic decisions. State v. Lloyd , 12th Dist. Warren Nos. CA2007-04-052 and CA2007-04-053, 2008-Ohio-3383, 2008 WL 2635499, ¶ 61. Therefore, because the record does not support Laghaoui's claim that Attorney Quraishi was ineffective, nor contain any evidence to indicate Laghaoui suffered any resulting prejudice thereby, Laghaoui's fourth assignment of error lacks merit and is overruled.

{¶ 36} Assignment of Error No. 5:

{¶ 37} THE TRIAL COURT ERRED WHEN IT PERMITTED THE PROSECUTOR TO ESTABLISH THAT DEFENDANT-APPELLANT COULD NOT BE HOSPITALIZED IF FOUND NOT GUILTY BY REASON OF INSANITY.

{¶ 38} In his fifth assignment of error, Laghaoui argues the trial court erred by overruling his objection to testimony that the conditions he purportedly suffered from; namely, cannabis use disorder, generalized anxiety disorder, and schizotypal personality disorder, did not meet the criteria for involuntary hospitalization. In support of this claim, Laghaoui argues this was a "highly inappropriate line of questioning" that gave the jury the impression that "he would be on his way back home" if it found him not guilty by reason of insanity. However, contrary to Laghaoui's claim otherwise, a simple review of the record indicates this testimony was elicited by the state in order to counter Laghaoui's claim that he was suffering from a severe mental disease or defect on the night in question, thereby supporting his not guilty by reason of insanity defense. Pursuant to R.C. 2901.01(A)(14), because Laghaoui could be found not guilty by reason of insanity only if he proved, by a preponderance of the evidence, that at the time of the offense he did not know, as a result of a severe mental disease or defect, the wrongfulness of his acts, we find nothing improper about the challenged testimony. Therefore, finding no error in the trial court's decision, Laghaoui's fifth assignment of error lacks merit and is overruled.

{¶ 39} Assignment of Error No. 6:

{¶ 40} THE TRIAL COURT ERRED WHEN IT GRANTED THE STATE'S MOTION IN LIMINE PROHIBITING TESTIMONY FROM DEFENSE WITNESS FANTEGROSSI.

{¶ 41} In his sixth assignment of error, Laghaoui argues the trial court erred by granting the state's motion in limine, thereby excluding testimony from his intended expert witness, Dr. Fantegrossi, regarding the "effect that synthetic cannabinoids may have in causing psychosis" at trial. We disagree.

{¶ 42} A trial court's ruling on a motion in limine, including a motion to exclude expert testimony, is a "tentative, interlocutory, and precautionary ruling that reflects the trial court's anticipated treatment of an evidentiary issue that may arise at trial." State v. Shalash , 12th Dist., 2015-Ohio-836, 41 N.E.3d 1263, ¶ 30. In turn, "[a] motion in limine is directed to the inherent discretion of the trial judge, about an evidentiary issue that is anticipated, but has not yet been presented in full context." State v. Harris , 12th Dist. Butler No. CA2007-11-280, 2008-Ohio-4504, 2008 WL 4117164, ¶ 27. Generally, a trial court's ruling on a motion in limine does not preserve for review any error the trial court may have made in ruling on the motion; rather, "any claimed error regarding a trial court's decision on a motion in limine must be preserved at trial by an objection, proffer, or ruling on the record." State v. Hensley , 12th Dist. Warren No. CA2009-11-156, 2010-Ohio-3822, 2010 WL 3212996, ¶ 29. Therefore, "when a party files a motion in limine regarding the exclusion of evidence but fails to timely object at trial, this court will review the admission of such evidence under a plain error analysis." State v. Freeze , 12th Dist. Butler No. CA2011-11-209, 2012-Ohio-5840, 2012 WL 6115671, ¶ 43.

{¶ 43} It is well-established that this court will not reverse a trial court's decision regarding the admission of evidence absent an abuse of discretion. State v. Perez , 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 96. "A reviewing court should not disturb evidentiary decisions in the absence of an abuse of discretion that has created material prejudice." State v. Boles , 12th Dist. Brown No. CA2012-06-012, 2013-Ohio-5202, 2013 WL 6198310, ¶ 14, citing State v. Smith , 12th Dist. Fayette No. CA2007-10-035, 2008-Ohio-5931, 2008 WL 4901705, ¶ 33. An abuse of discretion connotes more than an error of law or judgment; it implies that the trial court's decision was unreasonable, arbitrary, or unconscionable. State v. Napier , 12th Dist. No. Clermont No. CA2016-04-022, 2017-Ohio-246, 2017 WL 283473, ¶ 21.

{¶ 44} Although the challenged testimony was proffered on the record, the state argues this issue must be reviewed under a plain error analysis since Laghaoui failed to object to the trial court's decision to exclude Dr. Fantegrossi's testimony at trial.

However, regardless of whether this issue is reviewed for plain error, or merely for error under an abuse of discretion standard, the record fully supports the trial court's decision to exclude Dr. Fantegrossi's expert testimony as it was not admissible under the United States Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and this state's evidentiary rule regarding the use of expert testimony as found in Evid.R. 702.

{¶ 45} In Daubert , the United States Supreme Court called upon federal district courts to act as a "gatekeeper" in determining whether expert testimony on scientific matters is admissible under Federal Rule of Evidence 702. To that end, the Supreme Court noted four factors the district courts were advised to consider in evaluating an expert's theory or technique; specifically, (1) whether it can be, and has been, tested; (2) whether it has been subjected to peer review and publication; (3) what its known, or potential, rate of error is, and whether standards controlling its operation exist; and (4) whether it is generally accepted in the field. Id. at 593-594, 113 S.Ct. 2786. The Ohio Supreme Court later adopted these same four factors for analyzing issues arising under Evid.R. 702 in both civil and criminal cases. See Miller v. Bike Athletic Co. , 80 Ohio St.3d 607, 687 N.E.2d 735 (1998) ; and State v. Nemeth , 82 Ohio St.3d 202, 694 N.E.2d 1332 (1999).

{¶ 46} Pursuant to Evid.R. 702, a witness may testify as an expert if all of the following apply:

(A) The witness' testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons;
(B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;
(C) The witness' testimony is based on reliable scientific, technical, or other specialized information. To the extent that the testimony reports the result of a procedure, test, or experiment, the testimony is reliable only if all of the following apply:
(1) The theory upon which the procedure, test, or experiment is based is objectively verifiable or is validly derived from widely accepted knowledge, facts, or principles;
(2) The design of the procedure, test, or experiment reliably implements the theory;
(3) The particular procedure, test, or experiment was conducted in a way that will yield an accurate result.

{¶ 47} As noted above, Laghaoui argues the trial court erred by excluding Dr. Fantegrossi's testimony regarding the "effect that synthetic cannabinoids may have in causing psychosis." However, as it relates to the synthetic cannabinoids at issue in this case, XLR-11 and AB-CHMINACA, Dr. Fantegrossi specifically testified that he "couldn't tell"-but "wouldn't be surprised"-if there were psychotic effects associated with either substance. This is because, as Dr. Fantegrossi testified, there had not been any testing done regarding these substances. According to the state, Dr. Fantegrossi's opinion serves as nothing more than an unreliable, untested assumption that was inadmissible under both Daubert and Evid.R. 702. We agree. In so holding, we reject Laghaoui's claim that Dr. Fantegrossi should have been allowed to testify about the effects of synthetic cannabinoids in general when, even then, Dr. Fantegrossi testified "the acute and chronic biological effects of" synthetic cannabinoids are "largely unknown." Therefore, because the trial court did not err, let alone commit plain error, by granting the state's motion in limine, thereby excluding Dr. Fantegrossi's testimony regarding the "effect that synthetic cannabinoids may have in causing psychosis" at trial, Laghaoui's sixth assignment of error lacks merit and is overruled.

{¶ 48} Judgment affirmed.

RINGLAND and HENDRICKSON, JJ., concur.

      The underlying facts in this case are generally immaterial to the issues raised by Laghaoui on appeal. For a more detailed understanding of the facts giving rise to the charged offenses, see https://www.wcpo.com/news/local-news/warren-county/mohammed-laghaoui-found-guilty-of-most-serious-counts-in-june-shooting-of-father-and-deputy (accessed May 24, 2018).


source: Caselaw Access Project

author: CYNTHIA WESTCOTT RICE, J.

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee, v. Dale Thomas SANDERCOCK, Defendant-Appellant.
    NO. 2017-A-0061
    Court of Appeals of Ohio, Eleventh District, Ashtabula County.
    Decided June 25, 2018
    Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee).
    Michelle M. French, Law Offices of Michelle M. French, LLC, 28 West Jefferson Street, Jefferson, OH 44047 (For Defendant-Appellant).
   CYNTHIA WESTCOTT RICE, J.

{¶ 1} Appellant, Dale Thomas Sandercock, appeals from the judgment of the Ashtabula County Court of Common Pleas, after a trial by jury, convicting him of one count of failure to appear, in violation of R.C. 2937.99(A), (B), a felony of the fourth degree. We reverse and vacate appellant's conviction.

{¶ 2} The following testimony was adduced at trial: Mr. Sandercock was originally charged, in case number 2016 CR 426, with one count of felonious assault, a felony of the second degree. Counsel stipulated appellant was released on a personal recognizance bond, and the case involved a felony charge. Attorney Joseph Humpolick, an assistant public defender who retired shortly before the underlying trial, was Mr. Sandercock's attorney of record in the 2016 case. Attorney Humpolick testified he met with Mr. Sandercock at his office in Ashtabula on August 24, 2016. He further testified he provided Mr. Sandercock with a document, which he signed, outlining future hearing dates, including an October 14, 2016 pretrial conference. Attorney Humpolick also provided Mr. Sandercock with other documents relating to discovery in the matter.

{¶ 3} On October 13, 2016, a pretrial was held and Mr. Sandercock did not attend the hearing. Attorney Humpolick subsequently sent Mr. Sandercock a letter to notify him that he missed the hearing and advised his client to turn himself in to authorities. As a result of appellant's absence at the October hearing, he was indicted on one count of failure to appear.

{¶ 4} The state rested following Attorney Humpolick's testimony and Defense counsel moved for acquittal, pursuant to Crim.R. 29. Defense counsel argued the state failed to identify Mr. Sandercock during its case-in-chief; counsel maintained there was no evidence presented to actually tie the Dale Sandercock on trial to the crime charged. Counsel further argued the state failed to present sufficient evidence that Mr. Sandercock acted recklessly in failing to appear. The trial court overruled the motion without a rationale.

{¶ 5} The defense's evidence included testimony of Rebecca Sandercock, Mr. Sandercock's daughter-in-law, who testified she and her husband live in Northfield, in Summit County, Ohio. She stated Mr. Sandercock moved into their home in August 2016. Rebecca drove Mr. Sandercock to his August 24, 2016 appointment with Attorney Humpolick and he returned with a packet of papers after the meeting. Rebecca testified Mr. Sandercock conveyed what he and Attorney Humpolick discussed, including future court dates. According to Rebecca, Mr. Sandercock indicated the first hearing might be rescheduled and his attorney would contact him if the date did not change. She testified Mr. Sandercock noted a November 21 hearing and a December 20 hearing on his calendar and represented the case was important to him.

{¶ 6} On October 31, 2017, Rebecca retrieved the mail and gave Mr. Sandercock a letter from Attorney Humpolick that stated he had missed a court date and a warrant had been issued for his arrest. Mr. Sandercock's son, Rick Sandercock, testified he drove his father to the jail early the next morning. Mr. Sandercock turned himself in and Sergeant Donald Dietrich, the Assistant Jail Administrator at the Ashtabula County Sheriff's Department, testified Attorney Humpolick's letter was part of Mr. Sandercock's property when he arrived.

{¶ 7} Mr. Sandercock testified he has serious lung and heart conditions and he is on a variety of medications. In August 2016, he had recently moved in with his son and daughter-in-law and noted he had not unpacked most of his belongings. He acknowledged meeting with Attorney Humpolick in August 2016 for "quite some time" and received a "stack of papers in an envelope." He further recognized the gravity of failing to attend any of the scheduled hearings. And, he testified, his absence from the October hearing was not due to heedless indifference, but that he was simply "sloppy about keeping track." Upon receiving Attorney Humpolick's letter in late October, he testified he called the attorney's office and they advised him to "turn yourself in," which he did.

{¶ 8} Upon conclusion of its deliberations, the jury found Mr. Sandercock guilty of the offense. Counsel filed a written motion for a pre-sentence investigation report, which the court denied. Mr. Sandercock was subsequently sentenced to a 12-month term of imprisonment. He now appeals and assigns three errors for this court's review. His first assignment of error provides:

{¶ 9} "The trial court erred to the prejudice of the defendant by failing to grant his Rule 29 motion for acquittal; furthermore, the jury's verdict was against the manifest weight of the evidence."

{¶ 10} We shall begin by addressing appellant's challenge to the sufficiency of the evidence upon which his conviction was premised. A "sufficiency" argument raises a question of law as to whether the prosecution offered some evidence concerning each element of the charged offense. State v. Windle, 11th Dist. Lake No. 2010-L-0033, 2011-Ohio-4171, 2011 WL 3655243, ¶ 25. "[T]he proper inquiry is, after viewing the evidence most favorably to the prosecution, whether the jury could have found the essential elements of the crime proven beyond a reasonable doubt." State v. Troisi, 179 Ohio App.3d 326, 2008-Ohio-6062, 901 N.E.2d 856, ¶ 9 (11th Dist.).

{¶ 11} Mr. Sandercock first argues the prosecutor failed to establish his identity. He points out neither the state's sole witness, Attorney Humpolick, directly identified him, nor did any exhibit identify him as the defendant in this case. He further asserts there was insufficient circumstantial evidence in the state's case-in-chief to connect him as the individual who engaged in the acts or omissions which led to the underlying conviction.

{¶ 12} The state has a duty to prove, beyond a reasonable doubt, each element of the crime set forth in the indictment. See e.g. State v. Tate , 140 Ohio St.3d 442, 2014-Ohio-3667, 19 N.E.3d 888, ¶ 15. Additionally, the state must also demonstrate the identity of the defendant as the perpetrator beyond a reasonable doubt. State v. Cook , 65 Ohio St.3d 516, 526, 605 N.E.2d 70 (1992). Ohio courts have "long held that circumstantial evidence is sufficient to sustain a conviction if that evidence would convince the average mind of the defendant's guilt beyond a reasonable doubt," as circumstantial evidence is accorded equal weight and given the same deference as direct evidence. State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, 837 N.E.2d 315, ¶ 75. Moreover, Ohio courts have specifically held that the identity of a defendant as the perpetrator of the crime in question may be proven by indirect evidence. See e.g. State v. Baxla , 4th Dist. Highland No. 656, 1988 WL 65644, *3 (June 3, 1988). For instance, witness testimony referring to the person on trial as "the defendant," in conjunction with the state establishing that "the person committing the offense was arrested and charged and the defendant appeared at trial in response to the charge," Crim.R. 29(A) motion for judgment of acquittal." Id. See also State v. Brown , 12th Dist. Warren No. CA 2006-10-120, 2007-Ohio-5787, 2007 WL 3133893, ¶ 31 (state trooper testified he had "opportunity to speak with the defendant after she was apprehended * * *. Emphasis added.) State v. Lucas , 5th Dist. Morgan No. CAO4007, 2005-Ohio-3468, 2005 WL 1580830, ¶ 20 (officer questioned by defense counsel asked what he "saw when [he was] leading my client * * * out in handcuffs. (Emphasis added.)

{¶ 13} Courts have held, however, "merely establishing that the defendant's name is the same as that of the alleged offender is insufficient to prove identity." (Emphasis added.) State v. Bailey , 2d Dist. Montgomery No. 27177, 2017-Ohio-2679, 2017 WL 1788690, ¶ 18, citing State v. Gray , 7th Dist. Mahoning No. 09 MA 33, 2010-Ohio-2530, 2010 WL 2249629, ¶ 7, citing State v. Marcum , 7th Dist. Columbiana No. 03 CO 36, 2004-Ohio-3036, 2004 WL 1322918, ¶ 23 ; see also State v. Hatfield , 10th Dist. Franklin No. 04AP-402, 2004-Ohio-6450, 2004 WL 2757842, ¶ 16 ; State v. O'Neil , 107 Ohio App.3d 557, 561, 669 N.E.2d 95 (6th Dist.1995).

{¶ 14} At trial, there was sufficient testimony to establish that a male with the name Dale Sandercock was the person who was represented by Attorney Humpolick; that Dale Sandercock was advised of the various hearing dates for the 2016 felonious assault case; that Dale Sandercock failed to appear at the October hearing; that Dale Sandercock was later advised, via letter sent by Attorney Humpolick, that his failure resulted in a warrant for his arrest; and that Dale Sandercock subsequently turned himself in to the Ashtabula County Jail.

{¶ 15} The first issue raised by defense counsel's motion for acquittal was whether there was any evidence that the Dale Sandercock, who was indicted and standing trial, was the Dale Sandercock who was discussed during the state's case-in-chief. Defense counsel emphasized the prosecutor made no attempt at identification during the state's case-in-chief. The record supports counsel's contention.

{¶ 16} The state's only witness, Attorney Humpolick, was never asked to identify the man standing trial as his former client. Moreover, neither Attorney Humpolick, the prosecutor, nor defense counsel on cross-examination identified the man standing trial as the perpetrator of the offense or "the defendant." The state presented circumstantial evidence that the person who did not appear at the October hearing was named Dale Sandercock (by virtue of the case caption and the fact that a prosecution was taking place). Apart from having the same name, however, there was no direct or circumstantial evidence that the man standing trial was that person.

{¶ 17} The state does not specifically dispute the foregoing points. Instead, it points out that "prior to voir dire, the trial court stated, 'Dale Sandercock is the defendant in this case.' " The court asked appellant to stand, and he did. The state further emphasizes that Attorney Humpolick met with and represented "a Dale Sandercock." Attorney Humpolick confirmed he did and discussed the interactions and contact he had with "Dale Sandercock." Finally, albeit strangely, the state emphasizes appellant identified himself, during the defense's presentation of evidence, as Dale Sandercock.

{¶ 18} With respect to the first point, the court's pre-voir dire, pre-trial identification was not evidence presented to the trier of fact at trial; and, in any event, it is the state's burden, not the court's, to prove identity. See Tate , supra. Furthermore, Attorney Humpolick's testimony that he represented "a Dale Sandercock" only underscores the problem identified by defense counsel in her motion for acquittal.

"a" Dale Sandercock does not identify appellant as "the" Dale Sandercock on trial. Finally, a sufficiency argument, or a Crim.R. 29 motion concerns the state's burden of production and tests whether the prosecution presented adequate evidence for the case to go to the jury. See e.g. Windle , supra. Accordingly, appellant's identification during the defense's presentation of evidence was entirely irrelevant to the sufficiency inquiry. And, perhaps more importantly, such testimony would not have been on record had defense counsel's motion been granted.

{¶ 19} The Second Appellate District was recently faced with a similar issue in Bailey , supra . In that case, Lavetta Bailey was charged and found guilty of assault after a trial by jury. The state's evidence established two emergency medical personnel responded to a fight at a bar where they found, inter alia, a belligerent, yet visibly injured woman. They were able to transport her into their ambulance and, upon arrival at the hospital, the woman struck one of the individuals in the head with a closed fist. At trial, neither the emergency personnel nor a responding officer could identify Bailey as the perpetrator of the assault. After the state rested, Bailey moved for acquittal because no one had identified her as the person who assaulted the victim. The trial court overruled the motion, stating:

{¶ 20} "I concede this is a very, very close call by the Court. Very close. And if it were simply the identity, the name Lavetta Bailey, the motion for directed verdict would be sustained. But it's more than simply the name. It is the name. That is a factor, and it's the name Lavetta Bailey. But it's the cross examination of these various witnesses in which the questions by defense counsel assume as a given that it was the defendant who was the individual with whom these officers encountered. And so that or that reason that motion for directed verdict is overruled." Id. at ¶ 13.

{¶ 21} The Second District reversed the trial court's decision and found the state failed to prove Bailey's identity. The court emphasized that no witness at trial identified Lavetta Bailey, the woman on trial, as the assailant. The court further noted that "[e]vidence was presented that 'identifiers' such as a Social Security number and date of birth were obtained either by the ambulance personnel, Officer Roesser, or hospital personnel, but the testimony conflicted about who had obtained such information, and no specific evidence was admitted as to what Social Security number or date of birth was collected and entered into Roesser's computer at the hospital." Id at ¶ 22. Finally, the appellate court underscored that the trial court's reliance on defense counsel's questions on cross-examination was misplaced. The court observed that simply because defense counsel referred to "Ms. Bailey" and used the word "she" in questions was inconsequential because it was unclear whether the witnesses construed his questions as referring to the woman on trial or the woman who committed the offense. Id. at ¶ 25. And, in any event, as the court pointed out, questions of counsel are not "evidence." Id. at ¶ 26.

{¶ 22} Similar to Bailey , appellant was not identified as the perpetrator of the charged crime. And the exhibits submitted by the state fail to provide this necessary connection. The exhibits simply detail information relating to previous proceedings involving one, Dale Sandercock; again, however, this does not establish the requisite nexus between the man on trial and the individual who allegedly failed to appear. The only commonality is the name Dale Sandercock, which, as emphasized above, is insufficient to prove identity. Bailey , supra ; Gray , supra ("There needs to be more than mere identity of names, such as an in court identification of the defendant as the person who committed the crime."); Marcum , supra ("Establishing that the defendant's name is the same as the name of the person whom witnesses testified committed the crime is not sufficient evidence of identity."); Hatfield , supra ("Establishing the defendant's name to be the same as that of the person who witnesses testified committed the crime is generally insufficient evidence of identity."); O'Neil , supra ("Applying the Jenks [sufficiency] standard of viewing the evidence most favorably toward the state, the most any reasonable person might infer is that the O'Neil in this case is probably the same O'Neil in the 1984 case. But 'probably' does not reach proof beyond a reasonable doubt * * *").

{¶ 23} Here, in order to conclude the Dale Sandercock standing trial was the Dale Sandercock referred to in the state's case-in-chief, required the jury to assume identity. "When an inference, which forms the basis of a conviction, is drawn solely from another inference and that inference is not supported by any additional facts or inferences drawn from other established facts, the conviction is improper." State v. Payne, 11th Dist. Ashtabula No. 2014-A-0001, 2014-Ohio-4304, 2014 WL 4825334, ¶ 23. See also State v. Armstrong , 11th Dist. Portage No. 2015-P-0075, 2016-Ohio-7841, 2016 WL 6876504, ¶ 23 ; State v. Maynard, 10th Dist. Franklin No. 11AP-697, 2012-Ohio-2946, 2012 WL 2463966, ¶ 27. Based upon the evidence presented by the state, reasonable minds could not have concluded the Dale Sandercock, who was on trial for failure to appear, was the perpetrator of the offense at issue. The state therefore failed to produce sufficient evidence to sustain Mr. Sandercock's conviction. In this regard, the trial court erred when it overruled defense counsel's Crim.R. 29 motion.

{¶ 24} Given the foregoing disposition, we need not address Mr. Sandercock's manifest-weight argument.

{¶ 25} Appellant's first assignment of error has merit.

{¶ 26} Appellant's remaining assignments of error provide:

{¶ 27} "[2.] The trial court erred when it compelled appellant's prior counsel to testify regarding appellant's failure to appear and allowed the jury to consider as written evidence communications between counsel and the appellant

{¶ 28} "[3.] The trial court erred when it sentenced appellant to a prison term on a fourth degree felony without any indicated prior criminal history and without a presentence report which was requested by counsel."

{¶ 29} Because we vacate Mr. Sandercock's conviction, pursuant to our disposition of his first assignment of error, his remaining assignments of error are overruled as moot.

{¶ 30} For the reasons discussed in this opinion, the judgment of the Ashtabula County Court of Common Pleas is reversed and vacated.

THOMAS R. WRIGHT, P.J., concurs,

COLLEEN MARY O'TOOLE, J., dissents.


author: McFarland, J.

text:
    BOB BAY AND SON, CO., Plaintiff-Appellant, v. CIRCLE INVESTMENT CORP., Defendant-Appellee.
    No. 17CA11
    Court of Appeals of Ohio, Fourth District, Pickaway County.
    Released: June 19, 2018
    Paul W. Leithart, II, Strip, Hoppers, Leithart, McGrath & Terlecky Co., L.P.A., Columbus, Ohio, for Appellants Bob Bay and Son, Co. and Julia Bay.
    James R. Kingsley, Kingsley Law Office, Circleville, Ohio, for Appellee.
    DECISION AND JUDGMENT ENTRY

      Appellee, Circle Investment Corp., filed a counterclaim and third-party complaint against Julie Bay, GTGIF, LLC (Associated Wholesale Grocers, Inc.) and Memo Money Order Co. Inc. GTFIF, LLC and Memo Money Order Co. Inc. were later dismissed as parties. Only Julia Bay remained as a third-party defendant below and she is now participating on appeal.

   McFarland, J.

{¶ 1} Bob Bay and Son, Co. (hereinafter "Bob Bay") and Julia Bay, appeal the trial court's grant of partial summary judgment in favor of Appellee, Circle Investment Corp., as well as the trial court's denial of their competing motions for summary judgment. On appeal, Appellants contend that 1) the trial court erred when it granted partial summary judgment to Appellee and denied their summary judgment motions on the issue of whether Appellee had a common law landlord distress lien extending to Bob Bay's personal property; 2) the trial court erred when it granted summary judgment to Appellee and denied their motions for summary judgment because common law landlord distress liens have been abolished in Ohio; 3) the trial court erred when it failed to find that Appellant Julia Bay has a perfected security interest as to Appellant Bob Bay's personal property and sale proceeds thereof; and 4) the trial court erred when it found that Appellee's alleged common law landlord distress lien had priority over Appellant Julia Bay's perfected security interest.

{¶ 2} Because we have found that 1) common law landlord distress liens have been abolished in Ohio; 2) Appellee did not possess a statutory landlord's lien; 3) Appellee did not have a landlord's lien that arose by operation of law; and 4) Appellee did not have a consensual landlord's lien as the lease agreement between Appellant Bob Bay and Circle Investment Corporation expressly provided that the personal property and fixtures should remain the property of the tenants; and 5) Appellee did not enter into a separate security agreement with Appellant Bob Bay regarding its personal property, Appellants' first and second assignments of error have merit and are sustained. However, because we find that Appellants' third and fourth assignments of error are not ripe for review, in light of the fact that it appears from the record before us that the trial court failed to determine whether or not Appellant Julia Bay had a valid and perfected security interest in Appellant Bob Bay's personal property, and whether she was, in fact, next in line in terms of priority. Thus, we must remand this matter for further proceedings. Accordingly, the trial court's grant of partial summary judgment in favor of Appellee as to the issue of whether it had a perfected common law landlord's distress lien and denial of summary judgment as to Appellants on the same issue are reversed, and this matter is remanded to the trial court for further proceedings consistent with this opinion.

FACTS

{¶ 3} The following facts are taken from the affidavits of the parties attached in support of each party's motion for summary judgment, as well as the trial court's decision and entry granting summary judgment in favor of Appellee and denying Appellants' competing motions for summary judgment. The parties herein are in agreement as to the facts of this case and simply disagree on a question of law. Appellant, Bob Bay, operated a grocery store, doing business under the name Carnival Market, located at 120 Morris Road in Circleville, Ohio. Appellee, Circle Investment Corporation, was the owner of the premises and leased the premises to Appellant, Bob Bay. The original lease of this premises was between Appellee and Big Bear and originated on March 17, 1987. On December 21, 2003, Penn Traffic Company, which operated Big Bear, assigned its interest in the lease to Appellant, Bob Bay, pursuant to an assignment and assumption of lease agreement. Appellant, Bob Bay, at that point became the lessee of the premises subject to the terms of the original lease. The pertinent provisions of the lease will be discussed below.

{¶ 4} On December 31, 2014, Appellant, Bob Bay, entered into a security agreement with Appellant, Julia Bay, which granted a security interest in all corporate assets of the business. On that same date, Bob Bay signed a revolving credit promissory note agreeing to pay Julia Bay the amount of $1,194,405.00 pursuant to loans made by Julia Bay to the corporation. Julia Bay thereafter filed a financing statement with the Ohio Secretary of State on March 30, 2016.

{¶ 5} In November of 2016, Bob Bay informed Appellee during a telephone conversation that the premises would be vacated between December 15, 2016 and December 30, 2016, as the grocery store had become unprofitable and ceased its day to day operations. It also appears that the rent was current up until November 1, 2016, but was not paid for the month of November. Appellee thereafter changed locks on the building, which led Appellant, Bob Bay, to file a lawsuit against Appellee alleging breach of lease, interference with its contractual relationship with the liquidation company, seeking a permanent injunction to prevent obstruction of the sale of its personal property and equipment it intended to liquidate, and for punitive damages. Then, on December 1, 2016, Appellee signed a notice of distress lien as to Bob Bay's removable personal property, claiming it had a perfected distress lien for all unpaid rents upon the chattels owned by Bob Bay, and upon the proceeds, if sold. On that same day Appellee filed a counterclaim for breach of lease, seeking to recover rental payments and real estate taxes due and to foreclose upon its distress lien, as well as a third party complaint against Appellant, Julia Bay, who claimed to hold a perfected security interest over the personal property.

{¶ 6} The trial court held a hearing on December 6, 2016, and then issued a decision granting Appellee a distress lien upon Appellant Bob Bay's chattels and proceeds of the sale thereof. In that decision, the trial court found that Appellee likely had a perfected distress lien, that the priority of sale proceeds was in dispute, and noted that Appellee had agreed to allow the scheduled liquidation sale to occur and that Appellant, Bob Bay, agreed to deposit the net proceeds of the sale to be held in escrow by the Clerk of Courts until the issue was decided. Appellants subsequently filed a motion to vacate the decision finding Appellee had a distress lien, arguing that distress liens of personal property were no longer recognized in Ohio and had been abolished. It was further argued that liens upon personal property were now governed by R.C. Chapter 1309, which consists of Ohio's adoption of the Uniform Commercial Code. Appellee filed a memorandum contra Appellants' motion to vacate arguing R.C. Chapter 1309 did not apply to landlord's liens. After additional motion practice, the trial court issued a decision and entry on January 19, 2017, denying Appellants' motion to vacate.

{¶ 7} Thereafter, all parties filed motions for summary judgment. Appellee's motion for summary judgment requested judgment in its favor in the amount of $2,141,913.28 for breach of the lease and for a declaration that it had a valid commercial rent distress lien and first priority against the proceeds of the liquidation sale in the amount of $55,922.32. Appellant, Bob Bay, filed a motion for partial summary judgment seeking a determination that distress liens have been abolished in Ohio. Finally, on July 17, 2017, Appellant, Julia Bay, filed a motion for summary judgment, seeking an order that she had a perfected security interest in the proceeds of the sale of the personal property, that Appellee did not possess a distress lien, and that her perfected security interest had priority over the alleged distress lien.

{¶ 8} The trial court issued a decision on August 4, 2017, granting Appellee's motion for summary judgment, in part, on the issue of the distress lien, finding that common law landlord distress liens had not been abolished in Ohio. The trial court stated it would not award damages for lost rents and Appellee must file another action if it sought such an award. The trial court further denied Appellants' competing motions for summary judgment and dismissed any other remaining claims. It is from this decision and entry that Appellants now bring their timely appeal, setting forth four assignments of error for our review.

ASSIGNMENTS OF ERROR

I. THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT TO THE APPELLEE AND DENIED THE SUMMARY JUDGMENT MOTIONS OF APPELLANTS ON THE ISSUE OF WHETHER THE APPELLEE HAD A LANDLORD DISTRESS LIEN.

II. THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT TO THE APPELLEE AND DENIED THE SUMMARY JUDGMENT MOTIONS OF APPELLANTS BECAUSE LANDLORD DISTRESS LIENS HAVE BEEN ABOLISHED IN OHIO.

III. THE TRIAL COURT ERRED WHEN IT FAILED TO FIND THAT THE THIRD-PARTY DEFENDANT JULIA BAY HAS A PERFECTED SECURITY INTEREST IN THE PLAINTIFF'S PERSONAL PROPERTY AND THE SALE PROCEEDS THEREOF.

IV. THE TRIAL COURT ERRED WHEN IT FOUND THAT APPELLEE'S ALLEGED LANDLORD DISTRESS LIEN HAD PRIORITY OF APPELLANT'S THIRD-PARTY DEFENDANT JULIA BAY'S PERFECTED SECURITY INTEREST."

Standard of Review

{¶ 9} When reviewing a trial court's summary judgment decision, appellate courts conduct a de novo review under the standard set forth in Civ.R. 56. Comer v. Risko , 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. Summary judgment is appropriate when the movant has established (1) that there is no genuine issue of material fact, (2) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the nonmoving party, with the evidence against that party being construed most strongly in its favor, and (3) that the moving party is entitled to judgment as a matter of law. Bostic v. Connor , 37 Ohio St.3d 144, 146, 524 N.E.2d 881 (1988) ; citing Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978) ; see also Civ.R. 56(C).

{¶ 10} The burden to show that no genuine issue of material fact exists falls upon the party who requests summary judgment. Dresher v. Burt , 75 Ohio St.3d 280, 294, 662 N.E.2d 264 (1996). To satisfy its burden, the moving party must refer to "the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action," that affirmatively demonstrate that the nonmoving party has no evidence to support the nonmoving party's claims. Civ.R. 56(C) ; see also Hansen v. Wal-Mart Stores, Inc. , 4th Dist. Ross No. 07CA2990, 2008-Ohio-2477, 2008 WL 2152000, ¶ 8. After the movant supports the motion with appropriate evidentiary materials, the nonmoving party "may not rest upon the mere allegations or denials of the party's pleadings, but the party's response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Civ.R. 56(E). "If the party does not so respond, summary judgment, if appropriate, shall be entered against the party." Id.

{¶ 11} In the case sub judice, the materials the trial court considered consisted of the pleadings, affidavits by the parties, and copies of the original lease agreement and assignment and assumption of lease agreement regarding the subject property. Also appearing in the record are copies of the security agreement signed between "Bob Bay and Son Co." and Julia Kathy Bay, a revolving credit promissory note between "Bob Bay and Son, Inc." and Kathy Bay, a revolving line of credit agreement between "Bob Bay and Son, Inc." and Kathy Bay, and an initial filing statement filed by Julia Kathy Bay as to "Bob Bay and Son Co."

ASSIGNMENTS OF ERROR I AND II

{¶ 12} We address Appellants' first and second assignments of error together as they both challenge the trial court's rulings on the competing motions for summary judgment filed below. Appellants contend under these assignments of error that the trial court erred when it granted partial summary judgment to Appellee and denied the summary judgment motions of Appellants on the issue of whether Appellee had a common law landlord distress lien, because common law landlord distress liens have been abolished in Ohio. Appellants further contend that the type of interest Appellee seeks to secure in Appellant Bob Bay's personal property is governed by R.C. Chapter 1309, which controls secured transactions and adopts the Uniform Commercial Code (UCC). Appellee contends that common law landlord distress liens have not been abolished, but instead are alive and well in Ohio, and that R.C. Chapter 1309 does not apply to the facts of this case.

{¶ 13} Both parties are in agreement as to facts of the present case, but disagree on the law relative to this issue. The legal question presented here is whether the remedy of common law landlord distress, which allows the landlord to re-possess the real property at issue and also take any and all personal property found on the premises of the tenant, is still permissible; or whether Ohio's adoption of the Uniform Commercial Code as set forth in R.C. Chapter 1309 now governs such interests in a tenant's personal property. Based upon the following, we agree with Appellants' argument that common law landlord distress liens are no longer recognized in Ohio.

Common law

{¶ 14} Appellee is correct that the common law, at one time, provided for landlord distress liens and the State of Ohio appears to have recognized them at some point. "At common law, distress was a remedy for the collection of rent and the right to this remedy was incident to rent. Broadly defined, common-law distress allows the landlord to go upon the demised premises and seize anything that he or she might find there, as security for rent in arrears, and to hold it without sale until the rent is paid." 65 Ohio Jur. 3d Landlord and Tenant § 317 ; citing Sutliff v. Atwood , 15 Ohio St. 186, 1864 WL 24 (1864) and Am Jur. 2d, Landlord and Tenant § 813 (emphasis added).

{¶ 15} Similarly, in § 6:14 Distress for rent, Oh. Landlord Tenant L. (2017-2018 Ed.) it is explained that:

"Distress for rent was a common-law remedy that allowed the landlord to go onto the leased premises, seize anything he could find there, and use it as security for rent held in arrears, such holding to be without sale and only until the rent was paid. The right to the remedy of distress at common law was incident to the rent. Although there are no direct holdings on the question, the remedy of distress has been abolished in Ohio." (emphasis added).

However, as also noted in 65 Ohio Jur. 3d Landlord and Tenant § 315"At common law, a landlord has no lien upon the personal property of his or her tenant merely by reason of the landlord-and-tenant relationship. The landlord may, however, reserve a lien in his or her favor upon the personal property of the lessee, and it is common for such a provision to be included in a lease agreement." Citing Am. Jur. 2d, Landlord and Tenant § 790 ; Dean v. McMullen , 109 Ohio St. 309, 142 N.E. 683 (1924) ; and Metcalfe v. Fosdick , 23 Ohio St. 114, 1872 WL 55 (1872).

{¶ 16} The Supreme Court of Ohio, in Sutliff v. Atwood, supra, at 193-194, stated as far back as 1864, that "[d]istress was a remedy, it is true, incident to rent, at common law, for its collection; but, the abolition of this remedy did not destroy the other legal qualities of rent." (emphasis added). Sutliff involved the commercial lease of a dairy farm along with its cows, and the cows, it appears, were the personal property of the lessor. Id. at 192. Appellee argues that the statement regarding distress in Sutliff was merely dicta and should not be considered controlling by this Court or be construed to abolish distraint and distress. This Court reasoned as follows regarding the role of dicta and the reliance thereon in State v. Boggs , 89 Ohio App.3d 206, 213, 624 N.E.2d 204 (1993), when presented with an argument that analysis rendered by the court but not carried into the syllabus was dicta and therefore not binding:

"Be that as it may, the reality of appellate practice is that this court, and others, frequently rely on Supreme Court dicta for resolution of issues. Any court which disregards the Supreme Court's discussion of certain issues merely on the basis that it was not carried into the syllabus would be treading on dangerous and unstable ground. A healthy regard should be maintained for considered dicta . Dedham Water Co. v. Cumberland Farms Dairy, Inc. (C.A.1, 1992), 972 F.2d 453, 459 ; McCoy v. Massachusetts Inst. of Technology (C.A.1, 1991), 950 F.2d 13, 19."

{¶ 17} Thus, although we acknowledge the statement in Sutliff may be considered dicta and is therefore not controlling, we nevertheless find it persuasive and instructive on the issue before us, especially in light of the general lack of case law on this particular topic. Aside from this statement in Sutliff , this Court has been unable to locate a single case, going back over one hundred years, which even mentions common law landlord distress liens, with the exception of the case of Stephenson v. Haines , 16 Ohio St. 478, 1866 WL 10 (1866).

{¶ 18} Stephenson involved the lease and/or conveyance of a house that contained a right-of-re-entry provision which permitted the lessor to repossess the property, along with all the appurtenances, and avoid the conveyance upon default of payment. Id. After the lessee defaulted and lessor brought suit, the Court was presented with the question of "whether the parties to whom the rents were payable, had a lien therefore upon the premises, superior to the lien of the mortgagees". Id. at 479. The court held that "a lien for the rent always exists where the lease provides for a right of re-entry -- that is, the right, upon non-payment of rent, to avoid the lease and repossess the premises demised." Id. at 486. Noting that the instrument at issue was not a lease but rather "a deed of conveyance in fee, subject to a condition of defeasance[,]" the court reasoned that lessor had a two-fold lien; the equitable lien for the purchase money, and the lien by virtue of the reservation in the deed. Id.

{¶ 19} The court ultimately affirmed the lower court's determination that the lessor's lien upon the premises was superior to the lien of the mortgagees. Id. at 487. Thus, the Stephenson court recognized that a lessor's, or landlord's, lien has priority over a competing mortgagee where the instrument of conveyance provides for the lessor's or landlord's right of re-entry upon non-payment of rent. Stephenson , however, did not address the issue of whether a right-of-re-entry provision in a lease gives a lessor a lien on a lessee's personal property found on the demised premises.

{¶ 20} Although our research failed to yield examples of courts acknowledging and affirming common law landlord distress liens that extend beyond real property to the reach of the personal property of tenants, it did yield several examples of courts determining landlords had valid liens on the personal property of tenants where the lease contained a right-of-re-entry provision that expressly covered personal property. See Shoenberger v. Mount , 12 Ohio Dec. Reprint 292, 1855 WL 3200 (1855) (holding landlord lien has priority over mortgagee where a lien for the rent was reserved in the lease on chattel property); Metcalfe v. Fosdick , 23 Ohio St. 114, 1872 WL 55 (1872) (a lessor's expressly reserved lien on moveable machinery of a factory is superior to lessee's attaching creditors, and such lien is not a chattel mortgage and need not be recorded to be effective against third persons); Winslow v. Hart , 4 Ohio Dec. Reprint 567, 1879 WL 5020 (1879) (lessor's right is superior to holder of chattel mortgage where lease specifies personal property and fixtures shall not be removed until the end of the term and all rents are paid); But see Frigidaire Sales Corp. v. Katz , 29 Ohio N.P. (N.S.) 595, 1931 WL 2253 (1931) (differentiating between personal property and fixtures and determining that chattel mortgagee had priority over lessor as to personal property).

{¶ 21} We find the lack of case law on this issue, coupled with the Supreme Court of Ohio's comment, albeit dicta, in Sutliff , as well as the foregoing cited case law (which only analyzes lessor's or landlord's claimed liens on personal property of a tenant in the context of a lease agreement that provides for a right of re-entry, with concomitant right to repossess the real and personal property upon default of rent), satisfies us that common law landlord distress liens are no longer recognized in Ohio. We believe such finding is bolstered by more recent cases which discuss modern landlord liens as being either consensual, statutory or arising by operation of law, and falling within the gambit of R.C. Chapter 1309, as opposed to existing at common law. Walcher Grain Co. v. Slane , 6th Dist. Huron No. H-86-3, 1987 WL 8015, *1 (Mar. 20, 1987) ; see also Craig Wrecking Co. v. S.G. Loewendick & Sons, Inc. , 38 Ohio App.3d 79, 526 N.E.2d 321 (1987) (holding that "absent breach of the peace and pursuant to a valid lease provision, a commercial lessor may resort to self-help repossession upon default by the tenant[ ]" however "liability may arise for injury to * * * personal property resulting from the repossession."); Northfield Park Associates v. Northeast Ohio Harness , 36 Ohio App.3d 14, 521 N.E.2d 466 (1987) (finding commercial lease self-help provision permitting lessor to enter and take possession of the premises [not personal property] was not against public policy, and noting self-help was no longer permitted in residential leases) ;

Cozmyk Enterprises, Inc. v. Hoy , 10th Dist. Franklin No. 96APE10-1380, 1997 WL 358816, *7 (1997) (finding in favor of commercial lessee on conversion claim where lessor denied lessee access to its personal property by changing locks); Persky, Shapiro, Salim, Esper, Arnoff & Nolfi Co., L.P.A. v. Guyuron, M.D. , 8th Dist. Cuyahoga No. 77249, 2000 WL 1867407 (finding that a consensual landlord's lien provision in lease extending to personal property was governed by Chapter 1309 and must be perfected in accordance with that chapter and failure to do so results in third-party's perfected security interest taking priority over the landlord's unperfected interest). R.C. Chapter 1309 (Article 9 of the Uniform Commercial Code)

{¶ 22} In Walcher Grain Co. v. Slane, supra, at *1 (Mar. 20, 1987), the Sixth District Court of Appeals considered a commercial lease involving agricultural property and an asserted landlord's lien on the tenant's crops. Although agricultural leases are dealt with separately in R.C. Chapter 1309, we find the reasoning regarding landlord's liens in general in Walcher is still applicable and instructive. The Walcher court explained that "[t]here are three types of landlord's liens: statutory landlord's liens, other landlord's liens arising by operation of law, and consensual landlord's liens." Id. Although the court stated that statutory landlord's liens and other landlord's liens arising by operation of law do not fall within the scope of the U.C.C. Article 9 coverage, as adopted in Chapter 1309 of the Ohio Revised Code, it determined that " Section 1309.01 to 1309.50 of the Revised Code [did] apply to consensual landlord's liens." Id.

{¶ 23} In Walcher , the court ultimately held that "[a] landlord's lien of a tenant's crops does not arise by operation of law where the landlord-tenant agreement provides for cash-rent only." Walcher explained that "[c]onsensual landlord's lien arise where, for instance, a lease of the premises gives the landlord a lien to secure rent payments on goods owned by the tenant on the premises." Id. The Walcher court found that 1) no landlord's lien of any kind existed between the parties at issue as there is no statutory lien in Ohio governing a landlord's interest in his tenant's crops where the lease provides for cash-rent only; 2) no landlord's lien had arisen by operation of law; and 3) and no consensual landlord's lien had been created because "the landlord did not reserve any rights to or interest in the crops upon non-payment of rent[,]" and had not created a security interest pursuant to Chapter 1309. Id. at *2.

{¶ 24} Like Walcher , the lease at issue herein provides for cash-rent only by granting the lessor the right to re-enter and repossess the demised premises, to re-lease it to a third party, and to bring an action if necessary, to recoup the rent owed by lessee, Bob Bay. Thus, we cannot find that a landlord's lien arises by operation of law here. Further, this Court has been unable to confirm the existence of a statutory landlord's lien in Ohio despite exhaustive research. Thus, we conclude that there is no statutory landlord's lien at play here. Additionally, a review of the pertinent lease language indicates that there was never a consensual landlord's lien granted over Appellant Bob Bay's personal property in favor of Appellee according to the lease.

{¶ 25} Here, both parties contend that Article 24 of the lease is pertinent to our analysis. Article 24 of the lease is entitled "LESSEE'S DEFAULT" and it provides as follows in the event lessee defaults on payment of the rent:

"* * * Lessor may, at any time after such default, re-enter and take possession of the Demised Primises [sic] without such re-entry working a forfeiture of the rents to be paid and the covenants, agreements, and conditions to be kept and performed by Lessee for the full term of this Lease and, in such event, Lessor shall have the right to relet the same for such periods of time and at such rentals and for such use and upon such covenants and conditions as Lessor may elect, applying the net rentals from such letting first to the payment of Lessor's expenses incurred in re-entering and re-letting said premises and the balance, if any, shall be applied by Lessor on account of the payments due or payable by Lessee hereunder, with the right reserved to Lessor to bring such action or proceeding for the recovery of any deficits remaining unpaid * * *."

Appellee contends that the express right-of-re-entry contained in the lease that allows it to take possession of the demised premises extends to the tenant's personal property. Appellants contend that it does not. We agree with Appellants.

{¶ 26} We conclude, according to the plain language of the lease and in accordance with Stephenson v. Haines , as discussed above, that the right-of-re-entry absolutely gave Appellee the right to enter and take possession of the real property. We further conclude that the plain language of the lease limits Appellee's remedy, upon default in the payment of rent, to re-leasing the property to a third party and applying those proceeds to the amount due from the lessee, along with the right to file an action for the deficit that remained unpaid, much like in Walcher . Unlike the cases cited above, there is no express provision in this lease granting Appellee an interest in Appellant Bob Bay's personal property.

{¶ 27} Further, other sections of the lease expressly state that the personal property and fixtures of Bob Bay, as the lessee, shall remain the property of the lessee. For instance, Article 12 of the lease entitled "Fixtures and Personal Property" provides as follows:

"Any trade fixtures, equipment, and other property installed in or attached to the Demised Premises by and at the expense of the Lessee (including signs) shall remain the property of the Lessee, and Lessee shall have the right at any time , and from time to time, to remove any and all such property. Any material damage to the building caused by removal shall be promptly repaired by the Lessee so that the premises will be left in good order and repair." (emphasis added)

{¶ 28} Additionally, Article 14 of the lease entitled "Assigning and Subletting and Vacancy" provides that lessee has the right "to leave the Demised Premises vacant or unoccupied" and that if such event occurs lessor shall have the right to cancel or terminate the lease. Notice of Bob Bay's intent to vacate the premises was actually the event that triggered Appellee's subsequent conduct of changing the locks, etc. Article 14 further provides, in pertinent part, as follows:

"Upon any such cancellation Lessee shall remove its trade fixtures and equipment, furniture, merchandise and other personal property from the Demised Premises not later than thirty (30) days after Lessor's notice of cancellation.

Thus, contrary to Appellee's suggestion that the right-of-re-entry provision in the lease grants Appellee the right to repossess not only the real property but also the personal property of Appellant, the express language in the lease provides that all personal property and fixtures shall at all times remain the property of the lessee, who has the right to remove them at any time, even if lessor cancels the lease due to lessee's notice that it intends to vacate. This is the exact scenario that occurred in the present case. Clearly, according to the plain language of the lease at issue, no consensual landlord's lien was created here.

{¶ 29} The parties disagree on the issue of whether R.C. 1309.109 applies to landlord's liens, in general. Appellants argue that it does while Appellee argues that it does not. As discussed above, the Walcher court held that consensual landlord's liens fell within the parameters of R.C. 1309.109 to the extent they purport to claim an interest in a lessee or tenant's personal property, as opposed to real property (which does not fall within the coverage of the UCC). In reaching its decision the Walcher court reasoned as follows:

"Chapter 1309 of the Revised Code governs the creation and perfection of security interest in goods. U.C.C. Article 9 as adopted and codified in Chapter 1309 applies to consensual security interests as well as to certain sales. See R.C. 1309.02. However, the uniform model version, U.C.C. § 9-104(b) and most state adaptations, specifically provide that Article 9 does not apply to a landlord's lien. The Ohio legislature, however, has chosen to omit 'landlord's lien' from the exclusions listed in Ohio's version of U.C.C. 9-104. In other words, landlord's liens are not explicitly excluded from Article 9 coverage in Ohio.
Based upon this glaring omission, it would appear as if all landlord's liens must comply with Chapter 1309. This is not the case. Instead, the omission apparently was made out of a belief that to exclude landlord's liens would merely reiterate the limitations on coverage already made explicit in R.C. 1309.02 ( U.C.C.9-102 ). See R.C. 1309.04, Comment 2. Specifically, statutory landlord's liens and other landlord's liens arising by operation of law are already excluded from Chapter 1309 coverage since they are not transactions intended to create a security interest. Furthermore, no special provision exists in Chapter 1309 for statutory landlord's liens or other landlord's liens arising by operation of law (compare: Mechanic's liens). See 8 Anderson, U.C.C., (1985) 540, Landlord's Lien, Section 9-104 : 17. Based on the foregoing, we conclude that although Ohio has omitted 'landlord's lien,' from the exclusions listed in R.C. 1309.04, statutory landlord's liens and other landlord's liens arising by operation of law do not fall within the scope of U.C.C. Article 9 coverage as adopted in Chapter 1309 of the Revised Code. Accordingly, priorities between statutory landlord's liens/landlord's liens arising by operation of law and security interests perfected under Chapter 1309 are to be determined by pre-U.C.C. law.
Conversely, consensual landlord's liens are not excluded from Chapter 1309 coverage. R.C. 1309.02(C) specifically provides:
'The application of sections 1309.01 to 1309.50 of the Revised Code to a security interest in a secured obligation is not affected by the fact that the obligation is itself secured by a transaction or interest to which sections 1309.01 to 1309.50 of the Revised Code do not apply.' See Comment 4.
In other words, when a landlord's lien is created by agreement, Chapter 1309 applies to the security interest created even though it does not apply to the subject of the security interest. Therefore, section 1309.01 to 1309.50 of the Revised Code apply to consensual landlord's liens. Consensual landlord's liens must be perfected pursuant to Chapter 1309 which in turn governs any priority dispute between consensual landlord's liens and other security interests."

{¶ 30} The Walcher decision was issued in 1987 and landlord's liens were not excluded from the operation of Chapter 13 of the Revised Code at that time. However, based upon our research, it appears that R.C. 1309.109 was amended to exclude landlord's liens in 2001. For instance, R.C. 1309.109 now provides in section (D) that the chapter does not apply to "[a] landlord's lien, other than an agricultural lien[.]" Importantly, however, the language in R.C. 1309.109 relied upon by the Walcher court which led it conclude that consensual landlord's liens, as opposed to other types of landlord's liens, fell within the parameters of Chapter 1309 still exists in the current version of the statute. More specifically, R.C. 1309.109 currently provides as follows:

"(B) The application of this chapter to a security interest in a secured obligation is not affected by the fact that the obligation is itself secured by a transaction or interest to which this chapter does not apply."

R.C. 1309.109 (D)(11) further currently provides that:

"(D) This chapter does not apply to the following:
* * *
(11) The creation or transfer of an interest in or lien on real property, including a lease or rents under a lease, except to the extent that provision is made for:
* * *
(b) Fixtures in section 1309.334 of the Revised Code ;
* * *
(d) Security agreements covering personal and real property in section 1309.604 of the Revised Code." " (emphasis added)

{¶ 31} We interpret these provisions to mean that even though a lease agreement primarily covers obligations and interests in real property, which are excluded from Chapter 1309, to the extent a lease also purports to grant a lien or security interest in personal property, it is governed by Chapter 1309. Thus, it appears that even though landlord's liens are now excluded from Chapter 1309, there seems to be an exception to that exclusion to the extent a lease grants a consensual landlord's lien in personal property in addition to an interest in real property. Such a consensual lien would, in effect, create a security interest that is governed by Chapter 1309. Because the lease at issue here contains no language that could be construed to create a security interest in Bob Bay's personal property, and because it does not appear that the parties entered into any type of security agreement to evidence Appellee's interest in its lessee's personal property, we find Appellees have no valid lien or secured interest in said personal property.

Conclusion

{¶ 32} We have determined that common law landlord distress liens no longer exist in Ohio. We have further determined that 1) Appellee did not have a statutory landlord's lien; 2) Appellee did not have a landlord's lien that arose by operation of law; and 3) Appellee did not enter into any type of security agreement with Appellant Bob Bay, as provided for in R.C. Chapter 1309, with regard to its personal property. These findings combined with the lease provisions which expressly state, in more than one section, that the personal property of Bob Bay, as tenant, shall remain its property and may be removed at any time, leads us to the conclusion that Appellee has no lien or perfected security interest in the personal property at issue, nor the proceeds of the sale thereof. Therefore, we find that the trial court erred in granting partial summary judgment to Appellee on this issue, and in denying summary judgment to Appellants on this issue. Accordingly, Appellants' first and second assignments of error are sustained and the trial court's judgment granting partial summary judgment in favor of Appellees and denying summary judgment in favor of Appellants on this issue is reversed.

ASSIGNMENTS OF ERROR III AND IV

{¶ 33} In their third and fourth assignments of error, Appellants contend that the trial court erred when it failed to find that Julia Bay had a perfected security interest in Bob Bay's personal property and the sale proceeds thereof, and that it also erred in finding Appellee's alleged common law landlord distress lien had priority over Julia Bay's perfected security interest. After a thorough review of the record and the trial court's decisions and judgments issued in this case, it does not appear that the trial court ever actually analyzed Appellant Julia Bay's claim that she had a valid security interest that had been properly perfected. Throughout the proceedings, the trial court acknowledged her competing claim, but it never actually determined that her claimed security interest was valid or that it had been properly perfected. The trial court further failed to make a determination that Julia Bay stood next in line to Appellee in terms of priority. Instead, it appears that once the trial court determined Appellee had a valid common law landlord distress lien it, summarily dismissed Appellants' competing motions for summary judgment.

{¶ 34} To the extent Appellants are asking this Court to make a finding that Julia Bay's claimed security interest was valid and properly perfected, and that she is thus entitled to the proceeds of the sale of Bob Bay's personal property, we must refrain. Such an initial determination must be made by the trial court. This Court does not decide questions and issues that were not first determined by the trial court. Kearns v. Meigs County Emergency Medical Services , 2017-Ohio-1354, 88 N.E.3d 438, ¶ 23 ; citing Sickles v. Jackson Cty. Hwy. Dept. , 196 Ohio App.3d 703, 2011-Ohio-6102, 965 N.E.2d 330, ¶ 31 (4th Dist.) ; citing Stratford v. Chase Apts. v. Columbus , 137 Ohio App.3d 29, 33, 738 N.E.2d 20 (10th Dist. 2000) (explaining that the appellate court's independent review of a summary judgment decision should not replace the trial court's function of initially determining the appropriateness of summary judgment).

{¶ 35} As such, we find the arguments raised under Appellants' third and fourth assignments of error are not ripe for review, and this matter must be remanded for further proceedings consistent with this opinion. And, we further reverse the trial court's partial grant of summary judgment to Appellee on whether it had perfected a common law distress lien. Accordingly, we reverse and remand this matter to the trial court for further proceedings consistent with this opinion.

JUDGMENT REVERSED AND REMANDED.

Abele, J.: Concurs in Judgment and Opinion.

Hoover, P.J.: Concurs in Judgment Only.

      The security agreement granted a security interest in all of Bob Bay's computers, deposit and investment accounts, inventory and all other assets.

      The financing statement listed as collateral Bob Bay's merchandise, supplies, inventory, goods, fixtures, machinery, and equipment located at 120 Morris Road, Circleville, Ohio, as well as other locations owned by Bob Bay.

      Black's Law Dictionary (10th Ed. 2014) defines "distress" as "[t]he seizure of another's property to secure the performance of a duty, such as the payment of overdue rent."

      Black's Law Dictionary (10th Ed. 2014) defines "distrain" as "1. To force (a person, usu. a tenant), by the seizure and detention of personal property, to perform an obligation (such as paying overdue rent). 2. To seize (goods) by distress, a legal remedy entitling the rightful owner to recover property wrongfully taken."

      In reaching its decision the Northfield court noted that R.C. 5321.15 was enacted in 1974 and prohibited landlord self-help remedies as to residential tenants. The court also noted the fact that the statute did not include commercial landlords. We further note that this is still the state of the law today, with respect to a commercial landlord's right to re-enter and take possession of the premises, or real property, pursuant to a lease provision.

      At the time the Walcher decision was issued, it appears "landlord's liens" were not excluded from R.C. Chapter 1309. However, since that time, R.C. 1309.109 has been amended to exclude landlord's liens. Further discussion regarding exceptions to this exclusion will follow.

      R.C. 1309.02 has since been repealed.

      R.C. 1309.334 governs priority of security interests in fixtures.

      R.C. 1309.604 governs the procedure if a security agreement covers real property or fixtures.