author: RINGLAND, J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Bradley Dean YOUNG, Defendant-Appellant.
    NO. CA2016-10-201
    Court of Appeals of Ohio, Twelfth District, Butler County.
    February 26, 2018
    Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee
    Repper, Pagan, Cook, Ltd., Christopher J. Pagan, 1501 First Avenue, Middletown, Ohio 45044, for defendant-appellant
   RINGLAND, J.

{¶ 1} Defendant-appellant, Bradley Young, appeals his murder conviction in the Butler County Court of Common Pleas. For the reasons detailed below, we affirm.

{¶ 2} On December 2, 2015, at approximately 6:00 a.m., Rebekah K. called 911 for emergency assistance with regard to her two-year-old daughter, K.K., who was not breathing. Deputy Greg Turner and several other law enforcement officials arrived at Young's residence where Young was attempting to give CPR to K.K. Deputy Turner took over for Young and began administering CPR to K.K. until the EMT squad arrived.

{¶ 3} While life-saving efforts were ongoing, authorities made contact with Young and Rebekah. In describing the events leading to the 911 call, neither Young nor Rebekah reported that K.K. had been beaten or abused. Young, however, mentioned that he and K.K. had been in a recent car accident. Young also claimed that K.K. had recently fallen from a chair in the kitchen and that K.K. had a bump and cut on the back of her head from the faucet.

{¶ 4} There were, however, conflicting stories about who was with K.K. immediately prior to the 911 call. Subsequent investigations revealed that Young and Rebekah had been communicating through text messages. Shortly after 7:00 a.m., Young and Rebekah sent the following messages to each other:

Young: There [sic] going to try and make us look like bad parents babe not sure how they got three different stories either Chuck never said anything this is stupid.
Young: I love you and stay strong will be with.her [sic] soon
Rebekah: I know babe I love you to [sic]
Young: Just telling them she was laying with both of us in the living in the couch [sic] so they don't try and turn it around on you or me.

{¶ 5} K.K. was transported to Atrium hospital, arriving in a state of cardio pulmonary arrest. While at Atrium, emergency personnel were able to restart K.K.'s heart and staff performed a CT scan on K.K.'s brain. Because of the seriousness of her injuries, K.K. was transported to Cincinnati Children's Hospital.

{¶ 6} Following transportation to Cincinnati Children's, medical staff performed a second CT scan on K.K.'s brain. However, efforts to revive K.K. were unsuccessful and she was pronounced dead on December 4, 2016.

{¶ 7} Detectives interviewed Young and Rebekah while K.K. was still in the hospital. Young maintained that he had never harmed K.K. and insisted that both he and Rebekah were with the child on the couch when she suddenly cried out and began having problems breathing. Young continued, however, to tell law enforcement about various "accidents" that had happened to K.K. Young maintained that K.K. had previously fallen off a chair, had been involved in the previously mentioned car accident, and K.K. had recently struck her head on a faucet.

{¶ 8} On December 10, 2016, Young was indicted for involuntary manslaughter, endangering children, permitting child abuse, and murder.

Voir Dire

{¶ 9} On September 26, 2016, Young's case proceeded to a multiple-day jury trial. During voir dire, Juror 883 disclosed that, 41 years ago, he had been convicted of a felony drug offense in Indiana. Juror 883 indicated that he had been incarcerated for that offense for five months in the "youth center." Juror 883 continued to explain that he was released and subsequently earned an engineering degree.

{¶ 10} Young moved to strike Juror 883 for cause under R.C. 2313.17 and R.C. 2945.25 on the basis of the former felony conviction. The state disagreed and argued that Juror 883 was eligible to serve. Following the exchange, the trial court denied Young's request to strike Juror 883 for cause. Thereafter, Young used two preemptory challenges on two other jurors, but waived any use of his remaining preemptory challenges. Therefore, Juror 883 was empaneled on the jury.

Trial

{¶ 11} The state introduced the testimonies of various medical experts and law enforcement personnel. Deputy Turner testified about his communications with Young and Rebekah after EMTs arrived. Deputy Turner testified that he spoke with Rebekah and Young because he was concerned about bruising he observed on K.K.

{¶ 12} Deputy Turner described Rebekah as emotional and distressed. Rebekah told Deputy Turner that K.K. had experienced a nightmare and eventually stopped breathing. Young reported the same general information to Deputy Turner.

{¶ 13} The state called Bradley Peters, a fire lieutenant and EMT for Madison Township. EMT Peters spoke with Young and Rebekah to find out what had happened to K.K. EMT Peters stated:

[Young] stated that he was asleep alone with the child. [K.K.] was face down on his chest. At some point the child had woken up screaming, crying hysterically. [Young] stated that he thought she possibly had had a nightmare. He got up to go into a different part of the household to get the child's mother. At that point, * * * [K.K.] started breathing ineffectively and they contacted 911 to have us dispatched.

{¶ 14} The state also called Sergeant Jamy Chaney with the Trenton Police Department. Sergeant Chaney spoke with Rebekah, who she described as "nervous, upset, concerned." Rebekah stated that K.K. had been screaming and crying, keeping her and Young awake all night. Rebekah indicated that they were holding K.K. when she went limp and stopped breathing.

{¶ 15} Sergeant Chaney then asked Young if he knew what had happened and Young replied that K.K. had fallen from a chair in the kitchen and hit the back of her head causing a bump and a cut. Young also stated that he and K.K. had been "in a minor, like, fender bender car accident several days before."

{¶ 16} Deputy Brian Romans from the Butler County Sheriff's Office described Rebekah as upset, "emotionally shaken," and stuttering her words. Rebekah told Deputy Romans that K.K. had two "night terrors" that night, the first occurring approximately two hours before the last one. During the second night terror, Rebekah stated that K.K. was screaming loudly and "gasping for air." Young was holding K.K. when she stopped breathing and Young then told Rebekah to call 911.

{¶ 17} Deputy Romans then spoke to Young. Deputy Romans testified:

[Young] went on to explain to me that they were located on the couch. He was lying on the couch with K.K. on his chest. Rebekah was in the bedroom. He stated that during that time, * * * [K.K.], had experienced a night terror that Rebekah had claimed that they were having and he woke her up, he stood up, she started crying, gasping for air, and at one point she went limp.
He stated that he walked to the bedroom to get Rebekah. He summons her to call 911 and that is when they begin CPR.

{¶ 18} Detective Joe Ventre of the Butler County Sheriff's Office testified and authenticated several photographs of Young's hands, which were visibly cut and bruised.

{¶ 19} On the fourth day of trial, the state called Rebekah to the stand. Rebekah testified on direct examination, and Young's counsel conducted a lengthy cross-examination. Near the end of the day, Young's counsel indicated that it still had several hours of additional cross-examination to perform and the matter was adjourned until the following day.

{¶ 20} The next day, Young's counsel asked the trial court to hold a competency hearing for Rebekah. Rebekah was questioned by the state, Young's counsel, and the trial court. Following questioning, Young's counsel moved to strike Rebekah's testimony due to incompetency. Alternatively, Young's counsel moved for a mistrial.

{¶ 21} The trial court determined that Rebekah was "incapable of relating just impressions of the facts truthfully" and found her incompetent to testify. The trial court then struck Rebekah's testimony and Young withdrew the request for a mistrial. The trial court then instructed the jury:

Ladies and gentlemen, I'm instructing you and I'm ordering you to disregard the testimony of [Rebekah]. Now, I appreciate that that's a difficult concept to disregard something that you've actually heard. The Court cannot instruct you to delete something from your mind of what you've actually heard. What I'm ordering you to do is, if somehow you should remember anything that [Rebekah] testified to, you're instructed to disregard it.
For example, say to yourself, I cannot consider or be influenced by that in any way or for any purpose. Obviously that testimony must not be mentioned or otherwise be made part of your deliberations. Understood? Everybody is shaking their head in a vertical fashion.

{¶ 22} Following the conclusion of the state's case-in-chief, Young requested that the trial court dismiss the indictment because the state allegedly called Rebekah to the stand "knowing her mental state and understanding fully that she would take the stand and give false testimony." The trial court denied Young's request for a dismissal of the indictment.

{¶ 23} Prior to the conclusion of its case-in-chief, the state also presented the testimony of numerous medical experts. A neuroradiologist at Cincinnati Children's Hospital testified about CT images of K.K.'s brain. The neuroradiologist testified that the images showed that K.K.'s had suffered deep bleeding on her brain and brain stem and that she had suffered epidural and subdural hemorrhages.

{¶ 24} According to the neuroradiologist, the injuries that K.K. suffered could not be caused by a normal fall. Rather, the injuries that K.K. suffered were consistent with injuries that may be found on "a child hit by a car" or was involved in a "significant motor vehicle collision." Furthermore, based on the severity of the bleeding, and its progression, K.K.'s condition could not have been a delayed response. In other words, the results of K.K.'s CT scan indicated that K.K. suffered a very significant inflicted injury that would have occurred close to the time that she arrived at the hospital.

{¶ 25} The state then presented the testimony of a pediatric ophthalmologist at Cincinnati Children's Hospital. The doctor examined K.K.'s eyes while she was being treated and discovered that K.K. had a large preretinal hemorrhage that obscured K.K.'s central vision. The doctor also found hemorrhages in the periphery of K.K.'s retina and in all layers of the retina.

{¶ 26} The state then presented the testimony of a pediatrician and clinical fellow in child abuse pediatrics at the Mayerson Center at the Cincinnati Children's Hospital. The pediatrician had examined K.K.'s medical and radiologic records and had also examined K.K. prior to her death. The pediatrician testified that K.K. had suffered from non-accidental injuries caused by abusive head trauma. The two CT scans taken approximately two and one-half hours apart, revealed "significant brain swelling or cerebral edema." The pediatrician opined that K.K. suffered her injuries in close proximity to the time she arrived at the hospital.

{¶ 27} The chief deputy coroner at the Hamilton County Coroner's Office presented the results of the autopsy and declared the manner of death a homicide. The coroner testified that K.K. had bruises on the right and left sides of her face, as well as additional bruising on the right side of her neck. The coroner also explained that she did an internal examination of K.K.'s body and discovered internal bruising on K.K.'s scalp and head.

{¶ 28} The coroner testified that she examined K.K.'s brain and noted that K.K.

suffered a subdural hemorrhage on the right side of her brain and a subarachnoid hemorrhage that covered the entire surface of her brain. The coroner explained that K.K.'s brain swelled and caused herniation, which kills brain tissue and creates bleeding. As to the cause of K.K.'s brain injuries, the coroner testified:

There was an initial injury, trauma to the head. I don't know specifically what it is, if it was multiple blows to the head or if it was shaking, but what happened is it caused swelling in the brain. It caused that hemorrhage on the right hemisphere of the brain as well as-which is called the subdural hemorrhage -it caused * * * the subarachnoid hemorrhage over the entire surface of the brain.
The important thing is here that the brain swelled, because it was injured from the initial injury. Whether it was blows to the head or rotational injury which can occur if the child is shaken, twisted, turned-a child's brain can't handle that.
And like any injury-like if you fracture your forearm, you're going to get swelling and pain. And the brain, if the brain is injured from this blow or this rotational force, this twisting, the brain swelled. That is the lethal injury in her head. It swelled enough that it caused her to stop breathing and her heart to stop beating and she went to the hospital.

{¶ 29} The coroner went on to explain that K.K.'s injury "occurred around the time she went unresponsive and when her heart stopped beating." The coroner believed that the injury was inflicted within minutes of the time her heart stopped beating. The coroner stated:

The injury we're seeing here is something that was acute. She was injured. She went unresponsive and her heart stopped beating. It's not something that happened three or four days ago and took three or four days for her brain to get injured and to swell. This is something that she was injured, her brain swelled, she died. This is-this is within minutes. This is not from three or four days ago.

The coroner testified that, to a reasonable degree of medical certainty, the cause of K.K.'s death was "complications of non accidental [sic] trauma to the head."

Verdict

{¶ 30} Following the close of evidence, the matter was submitted to the jury for deliberation. Young was found guilty on all counts and the trial court imposed a 15-year-to-life prison term for his murder conviction in violation of R.C. 2903.02(B). Young now appeals his conviction, raising four assignments of error for review.

{¶ 31} Assignment of Error No. 1:

{¶ 32} THE TRIAL COURT ERRED BY OVERRULING YOUNG'S CHALLENGE TO JUROR 883 FOR CAUSE.

{¶ 33} In his first assignment of error, Young argues that the trial court erred by overruling his challenge to dismiss Juror 883 for cause. We find Young's argument to be without merit.

{¶ 34} Young argues that Juror 883 was a convicted felon who had not been pardoned, and thus was incompetent to serve as a juror. As a matter of state law, the Ohio Supreme Court has " 'recognized that where the defense exhausts its peremptory challenges before the full jury is seated, the erroneous denial of a challenge for cause in a criminal case may be prejudicial.' " State v. Hale , 119 Ohio St.3d 118, 2008-Ohio-3426, ¶ 87, 892 N.E.2d 864, quoting State v. Cornwell , 86 Ohio St.3d 560, 564, 715 N.E.2d 1144 (1999). "However, '[a] defendant in a criminal case cannot complain of prejudicial error in the overruling of a challenge for cause if such ruling does not force him to exhaust his peremptory challenges.' " Id. , quoting State v. Eaton , 19 Ohio St.2d 145, 249 N.E.2d 897 (1969), paragraph one of the syllabus. As a result, the Ohio Supreme Court has held that " '[i]f the trial court erroneously overrules a challenge for cause, the error is prejudicial only if the accused eliminates the challenged venireman with a peremptory challenge and exhausts his peremptory challenges before the full jury is seated.' " Id. , quoting State v. Tyler , 50 Ohio St.3d 24, 30-31, 553 N.E.2d 576 (1990).

{¶ 35} We find Young's argument to be without merit because he failed to exhaust his peremptory challenges. Even if the trial court had erred by overruling the for-cause challenge, any such error was not prejudicial. In the present case, Young utilized two of his four peremptory challenges, but left the remaining two unused. Young could have excluded Juror 883 through his own volition. Because he did not, Young "acquiesced in the jury" that was ultimately selected. Id. at ¶ 88. Young's first assignment of error is without merit and hereby overruled.

{¶ 36} Assignment of Error No. 2:

{¶ 37} REBEKAH'S TESTIMONY WAS INADMISSIBLE UNDER EVID.R. 601(A), R.C. 2317.01, AND DUE PROCESS BECAUSE SHE WAS INCAPABLE OF RELATING TRUTHFUL FACTS.

{¶ 38} In his second assignment of error, Young argues that Rebekah's testimony was inadmissible because she was incapable of relating truthful facts. We find Young's argument is without merit.

{¶ 39} Evid.R. 601(A) states that every person is competent to be a witness except "[t]hose of unsound mind, and children under ten years of age, who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly." Evid.R. 601(A) ; State v. Nasser , 10th Dist. Franklin No. 02AP-1112, 2003-Ohio-5947, 2003 WL 22511552, ¶ 38. As noted by the Ohio Supreme Court:

A plain reading of Evid.R. 601(A) leads to the conclusion that the competency of individuals ten years or older is presumed, while the competency of those under ten must be established. * * * The rule favors competency, conferring it even on those who do not benefit from the presumption, such as children under ten, if they are shown to be capable of receiving just impressions of the facts and transactions respecting which they are examined and capable of relating them truly. * * * As a result, absent some articulable concern otherwise, an individual who is at least ten years of age is per se competent to testify.

State v. Clark , 71 Ohio St.3d 466, 469, 644 N.E.2d 331 (1994) (citations omitted).

{¶ 40} In the present case, Rebekah told two conflicting stories. To first responders, Rebekah did not disclose any abuse and told a story that mostly corroborated Young's account of the incident, i.e., that K.K. had suddenly fallen into the unresponsive state without any physical abuse. However, Rebekah told a different story while on the stand. In her testimony, Rebekah disclosed that Young had been abusing K.K. by spanking her, smacking her, holding her mouth shut, shaking her, and punching her. On the night K.K. became unresponsive, Rebekah testified that Young had shaken and punched K.K. multiple times because she was crying.

{¶ 41} Young complains that Rebekah's testimony was inadmissible because she was incapable of relating truthful facts. The trial court agreed that Rebekah was unable to relate truthful facts and her testimony was stricken from the record. The trial court struck Rebekah's testimony following concerns that Rebekah may have been under the influence of drugs at the time of trial. Furthermore, there were concerns that Rebekah was relaying untruthful testimony in the hopes of "getting it over with." On cross-examination, Rebekah gave several inconsistent answers. When asked to explain her inconsistent answers, Rebekah admitted that some of her answers were not true, that she was anxious and stressed, and that sometimes she "just want[s] to hurry up and get it done, so I just hurry up and answer the questions." The trial court also had the following exchange with Rebekah:

THE COURT: [Rebekah], when the jury is sitting there looking at you and I'm looking at you and all the lawyers are looking at you and all those people in the back row are looking at you, you told me you just answer the question just to get through it?
[REBEKAH]: Yes.
THE COURT: And when you answer a question truthfully, do you know that it's not the truth?
[REBEKAH]: No.
THE COURT: You just throw out an answer and you don't know whether it's truthful or untruthful, you just respond?
[REBEKAH]: Yes.
THE COURT: How do you pick how to respond, yes or no, for example? How do you pick?
[REBEKAH]: I-I don't-I just try to answer what they want me to answer.
THE COURT: So, when [the prosecutor] is asking you questions and [the assistant prosecutor] [is] asking you questions, you'll say what you think they want to hear?
[REBEKAH]: No.
THE COURT: When [Defense Counsel 1] [is] asking you questions or [Defense Counsel 2] is asking you questions, then you just say what you think what [sic] they want to hear.
[REBEKAH]: Yes.
THE COURT: Why is that?
[REBEKAH]: Because I'm nervous and I don't like being yelled at and everybody in here just makes me really nervous.
THE COURT: So you told me that you don't care to give the answers-you're not trying to give answers that you think the prosecution wants to hear but you want to give answers that you think the defense wants to hear?
[REBEKAH]: Yes.
* * *
[REBEKAH]: I've told the prosecutors the truth about my story so I know that they already know.
THE COURT: So, since they already know the truth you don't care if you tell the truth to them today?
[REBEKAH]: Yeah, I do.
THE COURT: Well, that's not what you told me a minute ago. A minute ago you said, you're not trying to please them and maybe that's not true.
So, we got on this question of whether or not you're trying to please the Prosecutors and you're saying I'm not trying to please the Prosecutors but you're trying-then you said you're trying to please the Defense attorneys?
[REBEKAH]: Yes.
THE COURT: Can I ask? Why are you trying to please the Defense attorneys?
[REBEKAH]: Because the Prosecutors already know what happened, I told them everything, so I don't feel like I have to please them and [Defense Counsel], he doesn't know the whole story, he doesn't know my side and I just feel like when he's coming at me I just have to agree with him.

{¶ 42} As previously noted, the trial court found Rebekah incapable of relating just impressions of the facts truthfully and struck her prior testimony. Following its decision, the trial court instructed the jury:

Ladies and gentlemen, I'm instructing you and I'm ordering you to disregard the testimony of [Rebekah]. Now, I appreciate that that's a difficult concept to disregard something that you've actually heard. The Court cannot instruct you to delete something from your mind of what you've actually heard. What I'm ordering you to do is, if somehow you should remember anything that [Rebekah] testified to, you're instructed to disregard it.
For example, say to yourself, I cannot consider or be influenced by that in any way or for any purpose. Obviously that testimony must not be mentioned or otherwise be made part of your deliberations. Understood? Everybody is shaking their head in a vertical fashion.

{¶ 43} We find no error in the trial court's handling of Rebekah's testimony. Initially, Young complains that he was deprived of due process because the state put Rebekah on the stand as a witness. Young complains that the state "knew about Rebekah's potential for lying when she told responders, officers, detectives, and the trial judge that she had no idea who abused [K.K.]." As a result, when Rebekah testified at trial that Young had been K.K.'s abuser "the prosecutor assumed the risk of what eventually materialized-Rebekah was deemed incompetent and infected the jury with inadmissible and incompetent testimony. The prosecutor's failure to safeguard against this manifest risk violated due process."

{¶ 44} However, contrary to Young's arguments, there was no violation of due process. It is well-established that the touchstone of due process analysis is the fairness of the trial, and not any perceived culpability of a prosecutor. Smith v. Phillips , 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). While Rebekah's testimony was stricken based on her strange and conflicting answers, "[t]here can be no such thing as an error-free, perfect trial, and * * * the Constitution does not guarantee such a trial." United States v. Hasting , 461 U.S. 499, 508-509, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983) ; State v. Wilson , 74 Ohio St.3d 381, 398-399, 659 N.E.2d 292 (1996).

{¶ 45} There is no dispute that Rebekah was a poor witness. The record reflects that on cross-examination Rebekah was timid and evasive in her responses. Though Rebekah never recanted her testimony that Young had abused K.K., she testified that she had agreed to certain statements made by defense counsel "to hurry up and get it done." Rebekah informed the trial court that she did so because the state already knew "the truth" and that the defense counsel didn't have the "whole story," so she felt compelled to agree with defense counsel.

{¶ 46} While Rebekah was a poor witness and the trial court struck her testimony based on her unreliability, Young has failed to show that he was deprived of due process. Furthermore, though Young claims otherwise, there is no evidence to suggest that the state knew or should have known that Rebekah was incompetent or would provide incompetent testimony. As a result, we find Young was not deprived of due process, even though Rebekah's testimony was deemed incompetent and struck from the record.

{¶ 47} Furthermore, the trial court sufficiently remedied any prejudice suffered from Rebekah's testimony. As this court has previously stated "[c]urative instructions 'are presumed to be an effective way to remedy errors that occur during trial.' " State v. Tyree , 12th Dist. Fayette No. CA2016-09-012, 2017-Ohio-4228, 2017 WL 2537547, ¶ 16, quoting State v. Trzeciak , 12th Dist. Brown No. CA2014-06-010, 2015-Ohio-2219, 2015 WL 3542529, ¶ 24. "A jury is presumed to follow instructions given by the trial court." State v. Carpenter , 12th Dist. Butler No. CA2005-11-494, 2007-Ohio-5790, 2007 WL 3133886, ¶ 20.

{¶ 48} The trial court's curative instruction in this instance was appropriate and plainly instructed the jury not to consider Rebekah's testimony or be influenced by it in any way or for any purpose. Young asserts, however, that Rebekah's testimony was so prejudicial, that the trial court's minimal instruction could not "un-ring" the effect on the jury. Young's position, however, assumes that the limiting instruction was ineffective and that the risk of prejudice was too high for the instruction to negate it. However, we decline to make this assumption. See State v. Shouse , 12th Dist. Brown No. CA2013-11-014, 2014-Ohio-4620, 2014 WL 5316489, ¶ 14. As discussed in more detail below, there was enough circumstantial evidence to prove that Young was K.K.'s abuser. As a result, we overrule Young's second assignment of error.

{¶ 49} Assignment of Error No. 3:

{¶ 50} THE TRIAL COURT ERRED IN FAILING TO STRIKE REBEKAH'S STATEMENTS TO RESPONDERS AND OFFICERS AT THE SCENE.

{¶ 51} In his third assignment of error, Young argues the trial court erred by admitting and not striking Rebekah's statements made to responders and officers at the scene following the 911 phone call. We find Young's argument to be without merit.

{¶ 52} Young did not object to the statements at trial and he has therefore waived all but plain error on appeal. Pursuant to Crim.R. 52(B), plain error exists where there is an obvious deviation from a legal rule that affected the defendant's substantial rights or influenced the outcome of the proceedings. State v. Blanda , 12th Dist. No. CA2010-03-050, 2011-Ohio-411, 2011 WL 332725, ¶ 20. As this court has stated previously, "[n]otice of plain error must be taken with utmost caution, under exceptional circumstances, and only to prevent a manifest miscarriage of justice." State v. Nixon , 12th Dist. Warren No. CA2011-11-116, 2012-Ohio-1292, 2012 WL 1032891, ¶ 10. An error does not rise to the level of plain error unless, but for the error, the outcome of the trial would have been different. State v. Krull , 154 Ohio App.3d 219, 2003-Ohio-4611, ¶ 38, 796 N.E.2d 979 (12th Dist.)

{¶ 53} " 'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Evid.R. 801(C). Generally, hearsay testimony is inadmissible unless the testimony falls within one of the recognized exceptions to the hearsay rule. See Evid.R. 802.

{¶ 54} Young does not dispute the admissibility of Rebekah's statements under the applicable hearsay rules, but instead argues that her statements should have been stricken regardless. Young claims that the trial court should have stricken Rebekah's statements made to first responders when Rebekah was deemed incompetent to testify at trial. As previously noted, Rebekah initially denied that Young had abused K.K., but there were conflicting stories as to whether Young was alone with K.K. immediately before she became unresponsive. According to Young, "Rebekah's statements to responders and officers impacted the verdict because they established [Young's] presence with [K.K.] when [K.K.'s] fatal symptoms arose." Those statements then "helped the jury to infer" that Young alone recklessly abused K.K. and proximately caused her death.

{¶ 55} However, following a thorough review of the record, we find no error, let alone plain error, to sustain Young's argument. Though Rebekah was deemed incompetent at trial, there is no evidence that Rebekah was incompetent when she made the statements to first responders. Furthermore, there was additional evidence that Young committed the abusive acts. Detective Romans and EMT Peters both testified that Young told them that he was with the child alone while Rebekah was in the back bedroom, i.e., Young was alone with the child immediately before the abusive trauma occurred. In addition, there is evidence that Young sent a text message to Rebekah to get their stories straight that K.K. "was laying with both of us in the living in the couch [sic] so they don't try and turn it around on you or me." That evidence, coupled with the photographs of Young's cut and bruised knuckles, is circumstantial evidence that Young abused K.K. and inflicted the fatal blows. As a result, we overrule Young's third assignment of error.

{¶ 56} Assignment of Error No. 4:

{¶ 57} THE DEFENDANT'S FELONY MURDER AND PREDICATE CHILD-ENDANGERING CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND THERE WAS INSUFFICIENT EVIDENCE TO PROVE THAT HE RECKLESSLY ABUSED [K.K.] AND PROXIMATELY CAUSED HER DEATH.

{¶ 58} In his fourth assignment of error, Young argues the verdict is against the manifest weight of the evidence and there was insufficient evidence to sustain a conviction. We disagree.

{¶ 59} The concepts of sufficiency of the evidence and weight of the evidence are legally distinct. State v. Wright , 12th Dist. Butler No. CA2012-08-152, 2014-Ohio-985, 2014 WL 1356481, ¶ 10. Nonetheless, as this court has observed, a finding that a conviction is supported by the manifest weight of the evidence is also dispositive of the issue of sufficiency. State v. Jones , 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, 2013 WL 226898, ¶ 19. "Because sufficiency is required to take a case to the jury, a finding that a conviction is supported by the weight of the evidence must necessarily include a finding of sufficiency." State v. Hart , 12th Dist. Brown No. CA2011-03-008, 2012-Ohio-1896, 2012 WL 1494524, ¶ 43.

{¶ 60} A manifest weight challenge scrutinizes the proclivity of the greater amount of credible evidence, offered at a trial, to support one side of the issue over another. State v. Barnett , 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, 2012 WL 1940800, ¶ 14. In assessing whether a conviction is against the manifest weight of the evidence, a reviewing court examines the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses, and determines whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Morgan , 12th Dist. Butler Nos. CA2013-08-146 and CA2013-08-147, 2014-Ohio-2472, 2014 WL 2568600, ¶ 34.

{¶ 61} It is well-established that both circumstantial and direct evidence have the same probative value.

State v. Saunders , 12th Dist. Fayette No. CA2012-03-006, 2013 Ohio 2052, 2013 WL 2152523, ¶ 44. In fact, in some instances, certain facts can be established only by circumstantial evidence. State v. Crutchfield , 12th Dist. Warren No. CA2005-11-121, 2006 Ohio 6549, 2006 WL 3575492, ¶ 20. Circumstantial evidence is proof of certain facts and circumstances in a given case, from which the jury may infer other, connected facts, which usually and reasonably follow according to the common experience of mankind. State v. Ortiz-Bajeca , 12th Dist. Butler No. CA2010-07-181, 2011 Ohio 3137, 2011 WL 2535312, ¶ 20. A conviction based on purely circumstantial evidence is no less sound than a conviction based on direct evidence. State v. Haley , 12th Dist. Butler No. CA2012-10-211, 2013-Ohio-4123, 2013 WL 5372876, ¶ 8.

{¶ 62} Pursuant to R.C. 2903.02(B)"[n]o person shall cause the death of another as a proximate result of the offender's committing or attempting to commit an offense of violence that is a felony of the first or second degree and that is not a violation of [R.C.] 2903.03 or 2903.04." Under R.C. 2919.22(B)(1), child endangering is committed when one abuses a child under 18 years of age.

{¶ 63} Child endangering in violation of R.C. 2919.22(B)(1) is a second-degree felony and is defined as an "offense of violence" under R.C. 2901.01(A)(9), and may therefore serve as a predicate offense for felony murder. State v. Tompkins , 12th Dist. Butler No. CA2014-07-159, 2015-Ohio-2316, 2015 WL 3741042, ¶ 9 ; State v. Blanda , 2011-Ohio-411, 2011 WL 332725 at ¶ 17.

{¶ 64} Young concedes that the state proved that some abusive act proximately caused K.K.'s fatal brain swelling and herniations. Young also concedes that the state proved that his roommate, Rebekah, and himself were present when the abusive acts occurred. However, Young maintains that the state failed to prove that he committed the abusive act in the relevant timeframe.

{¶ 65} Following a thorough review of the record, we find Young's argument is without merit. In the present case, and as Young concedes, the state proved that K.K. died from an abusive act that caused horrific internal brain injury. Though Young remained steadfast during police interrogation that he had not harmed K.K. and that Rebekah was with him immediately prior to K.K.'s final scream, there is conflicting evidence in the record to rebut his prior statements.

{¶ 66} The state presented evidence that Young and Rebekah had conflicting stories about who was with K.K. immediately prior to becoming unresponsive. As previously noted, both Detective Romans and EMT Peters testified that Young told them that he was with the child alone while Rebekah was in the back bedroom, i.e., Young was alone with the child immediately before the abusive trauma occurred. Furthermore, Young's text message to Rebekah that he was "[j]ust telling them she was laying with both of us" so that "they don't try and turn it around on you or me" could be considered evidence of deception. While a two-year-old child was unconscious on the floor, Young had the mindset to text Rebekah to get their stories straight about who was with the child and when. These prior statements, along with the pictures of Young's battered and cracked knuckles could lead a jury to infer that Young was the responsible party.

{¶ 67} The state's evidence was sufficient to support a guilty finding and the jury's decision was not against the manifest weight of the evidence. Acting as trier of fact, the jury was in the best position to resolve factual questions and evaluate witness credibility. State v. Stanforth , 12th Dist. Clermont No. CA2016-07-052, 2017-Ohio-4040, 2017 WL 2334081, ¶ 33. The testimony and evidence introduced at trial supports a finding that Young so abused K.K. as to cause her injuries and ultimate death. As a result, we find Young's fourth and final assignment of error to be meritless, and it is hereby overruled.

{¶ 68} Judgment affirmed.

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

      The record reflects that Chuck was Young's roommate who was present that day.


source: Caselaw Access Project

author: PIPER, J. RINGLAND, J., concurring in part and dissenting in part.

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee/Cross-Appellant, v. DeShawn PORTER, Defendant-Appellant/Cross-Appellee.
    NOS. CA2017-07-101 CA2017-07-103
    Court of Appeals of Ohio, Twelfth District, Warren County.
    August 6, 2018
    David P. Fornshell, Warren County Prosecuting Attorney, Kristen A. Brandt, 520 Justice Drive, Lebanon, Ohio 45036, for appellee/cross-appellant
    Diehl & Hubbell, LLC, Martin E. Hubbell, 304 East Warren Street, Lebanon, Ohio 45036, for appellant/cross-appellee
   PIPER, J.

{¶ 1} Defendant-appellant/cross-appellee, DeShawn Porter, appeals the manner in which the Warren County Court of Common Pleas determined his jail-time credit after sentencing Porter to two years in prison. Plaintiff-appellee/cross-appellant, the state of Ohio, appeals the same trial court's decision awarding jail-time credit for days that Porter spent on house arrest.

{¶ 2} Porter pled guilty to one count of burglary and was sentenced to two years in prison. Porter was incarcerated for several months before he was granted judicial release and placed on three years of community control. Thereafter, Porter violated the terms of his community control by absconding and absenting himself from the jurisdiction without the trial court's permission. Porter also tested positive for drug use. The trial court then imposed more restrictive community control sanctions, which included electronically-monitored house arrest and a curfew.

{¶ 3} Porter violated the terms of his community control again when he tested positive for cocaine. The trial court revoked Porter's community control and imposed the original two-year prison term. The trial court awarded jail-time credit, which included the time that Porter spent on house arrest but did not include the amount of time Porter was subject to a curfew.

{¶ 4} Porter now appeals the trial court's calculation of jail-time credit, raising one assignment of error:

{¶ 5} THE TRIAL COURT ERRED WHEN IT FAILED TO GIVE APPELLANT JAIL-TIME CREDIT FOR TIME SPENT ON HOUSE ARREST, WITH A CURFEW.

{¶ 6} The state also appeals the trial court's sentence, raising the following cross-assignment of error:

{¶ 7} THE TRIAL COURT COMMITTED ERROR WHEN IT GRANTED PORTER 96 DAYS OF JAIL-TIME CREDIT FOR THE TIME HE SPENT ON ELECTRONICALLY-MONITORED HOUSE ARREST.

{¶ 8} Given that the two assignments of error are interrelated, we will address them together.

{¶ 9} As previously stated, the trial court revoked Porter's community control after Porter's second violation. In determining jail-time credit toward the two-year sentence, the trial court gave Porter credit for the time he was under house arrest, but did not award time for which Porter was subject to a curfew.

{¶ 10} This court has addressed these issues in previous decisions of which all parties and the trial court are aware.

This court has specifically determined that defendants are not confined for the purposes of granting jail-time credit when subject to curfew restrictions. State v. Bowling , 12th Dist. Warren, 2017-Ohio-8539, 88 N.E.3d 965. Although Porter asks us to depart from the precedent set forth in Bowling , we decline to do so and, instead, reiterate the legal analysis set forth therein.

{¶ 11} Ohio statutes specifically instruct sentencing courts to reduce a prison term by the total number of days that the defendant was "confined." R.C. 2967.191 ; R.C. 2949.08(B). However, the statutes do not define or offer guidance on how the term "confined" should be used by Ohio courts. Nevertheless, we noted in Bowling that curfew is not defined as a period of "confinement" under the terms of the Ohio Revised Code. Instead, and pursuant to R.C. 2929.01(G), the term curfew "means a requirement that an offender during a specified period of time be at a designated place."

{¶ 12} We also addressed the Ohio Supreme Court's decisions related to the issue of jail-time credit in State v. Nagle , 23 Ohio St.3d 185, 492 N.E.2d 158 (1986) ; and State v. Napier , 93 Ohio St.3d 646, 758 N.E.2d 1127 (2001). In Nagle , the defendant was ordered to attend a residential rehabilitation facility pursuant to the terms of his conditional probation. However, the defendant left the treatment before it was completed and was subsequently resentenced by the trial court. The court held that the defendant was not entitled to jail-time credit for time spent in the rehabilitation facility because "in none of [the examples of confinement under R.C. 2949.08(C) ] may the defendant leave official custody of his own volition." 23 Ohio St.3d at 186, 492 N.E.2d 158.

{¶ 13} In Napier , the court found that the defendant was entitled to jail-time credit for time spent at a community based correctional facility because the time spent there was confinement. Napier was only able to leave the facility after submitting a detailed written description of when he was leaving the facility, where he was going, and when he planned to return. The court reasoned that Napier was not free to come and go and was thus "subject to the control of the staff regarding personal liberties." 93 Ohio St.3d at 648, 758 N.E.2d 1127.

{¶ 14} Courts interpreting Nagle and Napier have concluded that " 'confinement' requires such a restraint on the defendant's freedom of movement that he cannot leave official custody of his own volition." State v. Blankenship , 192 Ohio App.3d 639, 2011-Ohio-1601, 949 N.E.2d 1087, ¶ 14 (10th Dist.). In State v. Tabor , 5th Dist. Richland No. 11CA33, 2011-Ohio-3200, 2011 WL 2557024, the Fifth District Court of Appeals held that an individual was not entitled to jail-time credit where the offender was placed on community control and subject to electronic monitoring and curfew. Tabor was subject to a curfew requirement that restricted him to his home between the hours of 10:00 p.m. and 6:00 a.m. Otherwise, the defendant "was free to move around within the county and could leave the county with permission as long as he abided by the terms of his community control." Id. at ¶ 18.

{¶ 15} The record indicates that Porter was subject to a curfew that required him to be home from 8:00 p.m. to 8:00 a.m., Monday through Sunday. Aside from those times, evidence submitted at the revocation hearing indicated that Porter had freedom of movement and was not in custody or restrained from movement. Instead, Porter was "able to do what he want[ed]," which included ingesting cocaine. Porter was also free to "do or go wherever" he wanted, other than leaving the state without permission. Porter was permitted to work, "come and go from [his] residence," attend parties or go to church. Further, Porter was able to go to the store, decide when and where to eat, was free to play video games, and watch movies or television. Porter was also permitted to have visitors, and his movement in his home was not restrained or restricted in any way. As a result, we find that Porter was not "confined" for purposes of calculating jail-time credit for the time spent on curfew. Therefore, the trial court did not err by calculating Porter's jail-time credit without including the days Porter was subject to a curfew. Consequently, Porter's assignment of error is overruled.

{¶ 16} While a majority of the panel in State v. Fillinger , 12th Dist. Madison, 2016-Ohio-8455, 72 N.E.3d 671, determined that being subject to house arrest qualifies as being confined for purposes of jail-time credit, we now depart from the reasoning set forth in that case.

{¶ 17} In Fillinger , the majority relied on the definition of house arrest set forth in Ohio's sentencing scheme. Specifically, R.C. 2929.01(P) defines house arrest as "a period of confinement of an offender that is in the offender's home or in other premises specified by the sentencing court * * *." Based solely on the definition provided in the statute, the majority held that a defendant subject to house arrest qualifies for jail-time credit for the days he or she spends on house arrest.

{¶ 18} In a well-reasoned dissent, Judge Robert A. Hendrickson determined that the statutory definition of house arrest should not be dispositive when deciding if one is subject to jail-time credit while on house arrest. Rather, Judge Hendrickson's dissent focused on the different ways the word "confinement" has been treated by the legislature, and that a sentencing court's final determination should be based on "circumstances surrounding the restraint of the defendant's physical movements without regard to whether the defendant's movements may constitute a violation of probation or community control." 2016-Ohio-8455, 72 N.E.3d 671, at ¶ 23. The circumstances by which conditions are imposed upon an individual identify the extent to which a person was subject to the control of others and liberties restrained. See Napier at 648, 758 N.E.2d 1127.

{¶ 19} We agree with the reasoning articulated in Judge Hendrickson's dissent. Porter's accountability to a designated location (his home) was not tantamount to confinement associated with the loss of liberties and restraint of choices found in jail confinement. While on house arrest, Porter was not subject to the control of officials regarding his personal decisions and self-determination. We therefore hold that an individual subjected to house arrest may not be awarded jail-time credit for the time spent on house arrest. This is because an individual's liberties, freedom of choices, and movement are not restrained to an extent commonly associated with being "confined." Porter had significant and substantial freedom from restraint while on house arrest. Thus, jail-time credit was improperly given to Porter for the time he was on house arrest. We therefore overrule this court's prior decision in Fillinger to the extent that it permits jail-time credit for those on house arrest.

{¶ 20} The record herein is undisputed that Porter's freedom of movement was not restrained while he was subject to house arrest. During the final probation hearing, testimony revealed that Porter wore an electronic monitoring device that merely beeped when he moved away from the beacon, but such monitoring did not stop him from leaving his home. During the time that Porter was under house arrest, he even moved residences from staying with a friend to moving into a long-term motel with his girlfriend.

{¶ 21} In fact, nothing about Porter's house arrest was consistent with traditional confinement. Porter's personal liberties were not curtailed, as he was not physically restrained, and instead, was merely monitored from afar by the probation department or court services. Porter was not locked in his home or subject to shackles or restraints. Porter controlled his own schedule, including moving freely around his home, planning meals, welcoming guests, and doing whatever he wanted while in the house.

{¶ 22} Moreover, Porter could have left his home at any time, as it was not locked or protected by probation or court services in any manner. Simply by choice, Porter could have left his home to go anywhere and do anything because he was never physically restrained or stopped from walking out his front door. Porter was granted the comfort and convenience of residing at home. Such is not equivalent to being subject to the moment-to-moment control of staff regarding personal liberties. The individual autonomy one experiences when required to be at a certain location, like house arrest, with all of its other freedom and choices, cannot remotely be compared to the substantial restrictions imposed by the confinement found in a government-operated facility.

{¶ 23} While Porter may have faced consequences for his choice to leave his house, such consequences for disobeying a court order were no more akin to confinement than his original decision to violate the terms of his community control. Simply stated, Porter was able to continue his life, make decisions on when and what he was going to do in his home, and was even able to move residences to reside with his girlfriend. Thus, Porter was not confined during the time he was subject to house arrest, and the trial court erred by granting Porter 96 days of jail-time credit. The state's cross-assignment of error is sustained. On remand, the trial court shall recalculate Porter's jail time credit and shall not give credit for the days Porter was subject to house arrest.

{¶ 24} Judgment affirmed in part, reversed in part, and the matter is remanded to the trial court for the sole purpose of recalculating Porter's jail-time credit.

S. POWELL, P.J., concurs.

RINGLAND, J., concurs in part and dissents in part.

RINGLAND, J., concurring in part and dissenting in part.

{¶ 25} I respectfully dissent for the reasons stated in State v. Fillinger , 12th Dist. Madison, 2016-Ohio-8455, 72 N.E.3d 671. In Fillinger , this court found that "house arrest" satisfied the definition of "confined" for purposes of determining jail-time credit. Id. at ¶ 12. In so doing, this court relied on the statutory definition of "house arrest," which is defined as "a period of confinement." R.C. 2929.01(P). As a result, "house arrest," when "imposed as a community control sanction pursuant to R.C. 2929.17 for conviction of a felony, it is 'confinement.' " Id.

{¶ 26} However, I concur in part because curfew is not defined as a period of "confinement" under the terms of the Ohio Revised Code. Pursuant to R.C. 2929.01(G), the term curfew "means a requirement that an offender during a specified period of time be at a designated place." State v. Bowling , 12th Dist. Warren, 2017-Ohio-8539, 88 N.E.3d 965, ¶ 17. Therefore, I would affirm the decision of the trial court to the extent it denied Porter credit for the time he was subject to a curfew.


author: MARY J. BOYLE, J.:

text:
    Bradley A. WYNVEEN, Plaintiff-Appellee v. Joseph G. CORSARO, Defendant-Appellant
    No. 105538
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: December 21, 2017
    Steven B. Beranek, 28039 Clemens Road, Westlake, Ohio 44145, ATTORNEY FOR APPELLANT
    Adam M. Fried, Holly M. Wilson, Reminger Co., L.P.A., 101 Prospect Avenue, West, 1400 Midland Building, Cleveland, Ohio 44115, ATTORNEYS FOR APPELLEE, Bradley A. Wynveen
    Douglas A. Dipalma, Cavitch, Familo & Durkin Co., L.P.A., 1300 East Ninth Street, 20th Floor, Cleveland, Ohio 44114, ATTORNEY FOR APPELLEE, Christine Wynveen, Natural Guardian of Kelly A. Wynveen, and Christine Wynveen, individually
    Michael R. Gareau, Jr., 5200 Dover Center Road, North Olmsted, Ohio 44070, ATTORNEY FOR APPELLEE, Guardian Ad Litem for Kelly A. Wynveen
    Shane A. Lawson, Monica A. Sansalone, Gallagher Sharp, L.L.P., Bulkley Building, 6th Floor, 1501 Euclid Avenue, Cleveland, Ohio 44115, ATTORNEYS FOR APPELLEE, Joseph G. Corsaro, Executor of the Estate of Richard A. Wynveen
    Shane A. Lawson, Gallagher Sharp, L.L.P., Bulkley Building, 6th Floor, 1501 Euclid Avenue, Cleveland, Ohio 44115, ATTORNEY FOR APPELLEE, Joseph G. Corsaro, Trustee of the Bradley A. Wynveen Irrevocable Trust
    Mike DeWine, Ohio Attorney General, Todd K. Deboe, Assistant Attorney General, 150 East Gay Street, 23rd Floor, Columbus, Ohio 43215, ATTORNEYS FOR APPELLEE, Ohio Attorney General's Office
    Egidijus K. Marcinkevicius, A. Sirvaitis & Associates, 880 E. 185th Street, Cleveland, Ohio 44119, ATTORNEY FOR APPELLEE, Natalie L. Wynveen
    BEFORE: Boyle, J., E.T. Gallagher, P.J., and Blackmon, J.
    JOURNAL ENTRY AND OPINION
   MARY J. BOYLE, J.:

{¶ 1} Defendant-appellant, Joseph G. Corsaro, appeals from the trial court's order disqualifying his counsel, Attorney Steven B. Beranek, in relation to his counterclaim against plaintiff-appellee, Bradley A. Wynveen ("Bradley"). He raises one assignment of error for our review:

Did the Trial Court abuse its discretion when it disqualified Attorney Steven Beranek from continuing to represent Joseph G. Corsaro, as Trustee of the Bradley A. Wynveen Irrevocable Trust, with regard to the counterclaim filed in the action below?

{¶ 2} For the reasons that follow, we affirm.

I. Procedural History and Factual Background

A. Corsaro & Associates' Prior Representations of the Wynveen Family

{¶ 3} Corsaro is the founder and senior managing partner of Corsaro & Associates Co., L.P.A. and has been a practicing attorney, specializing in federal tax law, for over 30 years. One of Corsaro's clients was Dr. Richard A. Wynveen ("Dr. Wynveen"), who Corsaro represented in numerous matters and dealings for over 20 years. During his representations, Corsaro helped Dr. Wynveen establish the Richard A. Wynveen Revocable Trust ("RAW"), the Bradley A. Wynveen Irrevocable Trust ("BAW Trust"), and the Jeffrey C. Wynveen Irrevocable Trust ("JCW Trust"), organize numerous business entities, and plan his estate.

{¶ 4} In addition to his services for Dr. Wynveen, Corsaro, as well as other members of Corsaro & Associates, offered legal assistance to Bradley, providing estate planning and representation for matters concerning property owned by Bradley and the BAW Trust. Further, attorneys from Corsaro & Associates helped organize, establish, and continue to maintain the Wynveen Family Foundation, preparing the foundation's tax returns. Bradley was designated as one of the trustees for the foundation and was expected to receive money from the foundation at some unspecified point in the future. Also, through August 2015, the firm provided legal services for Gainwell Limited Partnership, of which Bradley is part owner.

{¶ 5} On April 1, 2013, Dr. Wynveen passed away and was survived by his two sons, Bradley and Jeffrey C. Wynveen ("Jeffrey"). Two and one-half months later, Jeffrey also passed away. Prior to his passing, Dr. Wynveen appointed Corsaro as trustee of the RAW, BAW, and JCW trusts. In addition, according to the terms of Dr. Wynveen's will, Corsaro was named the executor of Dr. Wynveen's estate.

B. The Current Lawsuit and Counterclaim

{¶ 6} As part of his duties as executor of Dr. Wynveen's estate, Corsaro was responsible for paying $2,000,000 of estate tax due upon Dr. Wynveen's death. To do so, Corsaro decided to convert and collect assets owned by the estate, including debts owed by Bradley personally and as a partner in Gainwell Limited Partnership. Specifically, the debts allegedly included (1) a $100,000 loan (plus interest) from Dr. Wynveen to Bradley; (2) $338,000 in estate taxes derived from loans from Dr. Wynveen's estate to Bradley for the purchase of real property; and (3) Bradley's share of debt owed to the estate by Gainwell Limited Partnership. Bradley refused to pay those debts, however, disputing that he was responsible for them. As a result, Corsaro, the trustee of the BAW Trust, used funds from the BAW Trust to pay off the debts owed to the estate.

{¶ 7} Subsequently, on June 15, 2016, Bradley filed a complaint in the court of common pleas, probate division, against a number of defendants, including Corsaro, who was sued individually, as executor of the estate of Richard A. Wynveen, and as trustee of both the RAW and BAW trusts. The complaint also identified the Wynveen Family Foundation as a defendant.

{¶ 8} Bradley set forth six counts in his complaint, which were related to the administration of the BAW trust, RAW trust, Richard A. Wynveen's estate, and other business interests related to those trusts. Among other relief, the complaint sought the removal of Corsaro as trustee for the RAW and BAW trusts, trust and estate accountings, disgorgement of excessive attorney fees billed by Corsaro & Associates and fiduciary fees, surcharges, damages, and attorney fees.

{¶ 9} On September 14, 2016, Corsaro, in all of his capacities, filed an answer as well as a counterclaim against Bradley, seeking recovery of debts owed by Bradley to the BAW trust and Richard A. Wynveen's estate. Attorney Beranek, who works for Corsaro's law firm, Corsaro & Associates, represented Corsaro on his counterclaim and as trustee of the BAW trust. Attorney Beranek also filed a notice of appearance on behalf of the Wynveen Family Foundation; however, Attorney Beranek later filed a motion to withdraw as counsel for the foundation. Corsaro retained separate counsel to defend himself against the counts alleged in Bradley's complaint.

{¶ 10} On December 2, 2016, Bradley filed a motion to disqualify Attorney Beranek based on Corsaro & Associates' prior representations of Bradley and his family members. On February 13, 2017, the probate court, without a hearing, granted Bradley's motion to disqualify Attorney Beranek. In its judgment entry granting Bradley's motion to disqualify Attorney Beranek, the probate court found that

under the three part test for determining disqualification set forth in Dana , the Plaintiff has demonstrated that (1) a past attorney-client relationship exists between Plaintiff and Corsaro & Associates, (2) a substantial relationship exists between the subject matter of past relationships and the current dispute and (3) Corsaro, through his representation of Plaintiff and Plaintiff's businesses acquired confidential information from the Plaintiff.

{¶ 11} It is from that order that Corsaro now appeals.

II. Law and Analysis

{¶ 12} In his sole assignment of error, Corsaro contends that the trial court erred in disqualifying Attorney Beranek from representing him in his counterclaim against Bradley. In support of his argument, Corsaro argues that the trial court improperly applied the three-part test for disqualification set forth in Dana Corp. v. Blue Cross & Blue Shield Mut. , 900 F.2d 882 (6th Cir.1990). He specifically argues that the counterclaim and prior representations by attorneys of Corsaro & Associates are not substantially related and that Attorney Beranek did not acquire confidential information concerning Bradley. In response, Bradley argues that the trial court's order disqualifying Attorney Beranek was not an abuse of its discretion because all three prongs of the Dana test were satisfied.

{¶ 13} At the outset, we note that disqualification of counsel in a civil case is a final appealable order. See Ross v. Ross , 94 Ohio App.3d 123, 129, 640 N.E.2d 265 (8th Dist.1994) ; Kala v. Aluminum Smelting & Refining Co., Inc. , 81 Ohio St.3d 1, 3, 688 N.E.2d 258 (1998).

{¶ 14} Turning to the merits, trial courts have the "inherent authority to supervise members of the bar appearing before it and this necessarily includes the power to disqualify counsel in specific cases[,]" such as when "an attorney cannot, or will not, comply with the Code of Professional Responsibility when representing a client." Fried v. Abraitis , 8th Dist. Cuyahoga No. 103070, 61 N.E.3d 545, 2016-Ohio-934, ¶ 11, citing Royal Indemn. Co. v. J.C. Penney Co. , 27 Ohio St.3d 31, 501 N.E.2d 617 (1986), and Mentor Lagoons, Inc. v. Rubin , 31 Ohio St.3d 256, 510 N.E.2d 379 (1987). Trial courts have a wide discretion in exercising that authority. Id. , citing Royal Indemn .

{¶ 15} Accordingly, a trial court's decision to disqualify counsel will only be reversed if it constitutes an abuse of discretion. Id. , citing Centimark Corp. v. Browning Sprinkler Serv., Inc. , 85 Ohio App.3d 485, 620 N.E.2d 134 (8th Dist.1993). An abuse of discretion occurs when the lower court's conclusion is unreasonable, arbitrary, or unconscionable. Id. "A decision is unreasonable if there is no sound reasoning process that would support the decision." Id. , citing Centimark .

{¶ 16} When deciding whether to disqualify counsel, courts should keep in mind that disqualification is "a drastic measure which should not be imposed unless absolutely necessary" and must rely upon a thorough consideration of the facts.

Majestic Steel Serv. v. DiSabato , 8th Dist. Cuyahoga No. 76540, 1999 WL 961465, *2 (Oct. 21, 1999), citing Spivey v. Bender , 77 Ohio App.3d 17, 601 N.E.2d 56 (6th Dist.1991). " 'While motions to disqualify may be legitimate and necessary under certain circumstances, they should be viewed with extreme caution for they can be misused as techniques of harassment.' " Lytle v. Matthew , 8th Dist. Cuyahoga No. 104622, 2017-Ohio-1447, ¶ 13, 2017 WL 1407327, quoting Cliffs Sales Co. v. Am. Steamship Co. , N.D.Ohio No. 1:07-CV-485, 2007 WL 2907323 (Oct. 4, 2007).

{¶ 17} If the attorney-client relationship "is a continuing one, adverse representation is prima facie improper[.]" Sarbey v. Natl. City Bank , 66 Ohio App.3d 18, 24, 583 N.E.2d 392 (9th Dist.1990), citing Cinema 5, Ltd. v. Cinerama, Inc. , 528 F.2d 1384 (2d Cir.1976).

{¶ 18} If, however, the attorney-client relationship is a former one, Ohio courts use the " Dana test" when considering the disqualification of counsel due to a conflict of interest. Stanley v. Bobeck , 8th Dist. Cuyahoga No. 92630, 2009-Ohio-5696, ¶ 13, 2009 WL 3490668. Disqualification is proper when "(1) a past attorney-client relationship existed between the party seeking disqualification and the attorney it seeks to disqualify; (2) the subject matter of those relationships was/is substantially related; and (3) the attorney acquired confidential information from the party seeking disqualification." Dana Corp. , 900 F.2d at 889, citing Cleveland v. Cleveland Elec. Illum. Co. , 440 F.Supp. 193 (N.D.Ohio 1976). The burden of proof rests with the party moving for disqualification. Lytle at ¶ 13.

A. Past Attorney-Client Relationship

{¶ 19} The first prong of the Dana test for disqualification requires the existence of an attorney-client relationship. Corsaro argues that Bradley is only a former client of Corsaro & Associates. Bradley argues that he is both a former and current client of the firm.

{¶ 20} An attorney-client relationship can be created through either the express or implied conduct of the parties. New Destiny Treatment Ctr., Inc. v. Wheeler , 129 Ohio St.3d 39, 2011-Ohio-2266, 950 N.E.2d 157, ¶ 26. "[A]n attorney-client relationship need not be formed by an express written contract or by the full payment of a retainer. Instead, [it] may be created by implication based upon the conduct of the parties and the reasonable expectations of the person seeking representation." Cuyahoga Cty. Bar Assn. v. Hardiman , 100 Ohio St.3d 260, 2003-Ohio-5596, 798 N.E.2d 369, ¶ 8.

The practice of law includes the representation of a client in court proceedings, advice to clients, and any action in a client's behalf that is connected with the law. * * * [A]n attorney-client relationship exists when an attorney advises others as to their legal rights, a method to be pursued, the forum to be selected, and the practice to be followed for the enforcement of their rights. An essential element as to whether an attorney-client relationship has been formed is the determination that the relationship invoked such trust and confidence in the attorney that the communication became privileged and, thus, the information exchanged was so confidential as to invoke an attorney-client privilege.

(Emphasis added.) Landis v. Hunt , 80 Ohio App.3d 662, 669, 610 N.E.2d 554 (10th Dist.1992).

{¶ 21} If the attorney in the present action was not the adverse party's original attorney, but rather another attorney within the same law firm as the original attorney, the original attorney's relationship may nevertheless be imputed to the current attorney. Rule 1.10 of the Ohio Rules of Professional Conduct states:

While lawyers are associated in a firm , none of them shall represent a client when the lawyer knows or reasonably should know that any one of them practicing alone would be prohibited from doing so by Rule 1.7 or 1.9, unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.

Rule 1.7 prohibits an attorney from representing a client if that representation is adverse or materially limits the representation of a current client. Rule 1.9 prohibits an attorney from representing a client if that representation is substantially related and materially adverse to the interests of a former client of the attorney's.

{¶ 22} Here, the probate court stated:

Plaintiff sets forth multiple examples, supported by attached exhibits, demonstrating that Plaintiff and/or his businesses are current and prior clients of Beranek's law firm, Corsaro & Associates. Attorney Beranek's response, while accusing Plaintiff of foolishness and linguistic deception, does not deny that Defendant Corsaro has advised Plaintiff as to his estate planning and does not adequately dispute that Corsaro & Associates continue to represent Plaintiff as the Co-Trustee and President of the Wynveen Family Foundation and as part owner in Gainwell Limited Partnership.

The probate court's observations are supported by admissions by Corsaro as to his work on Bradley's estate and the firm's continued representation of the Wynveen Family Foundation as well as evidence provided by Bradley, establishing Corsaro & Associates' current representations and/or duties related to the BAW Trust, RAW Trust, Richard A. Wynveen's estate, Wynveen Family Foundation, and Gainwell Limited Partnership. In his appellate brief, Corsaro states, "With the exception of the Foundation, all other alleged representations by Corsaro of Brad and/or a company with which he is associated involve a former client." In other words, Corsaro admits that Bradley is a former client of Corsaro & Associates.

{¶ 23} Further, we find that Corsaro's statement, which was made subsequent to the firm's motion to withdraw as counsel for the foundation, supports the probate court's finding that Corsaro & Associates still represents the Wynveen Family Foundation. Therefore, Bradley, as trustee and president of the foundation, is still a current client of Corsaro & Associates. Citing In re Berger McGill , 242 B.R. 413, 420 (Bankr.S.D.Ohio 1999), Corsaro is correct in arguing that "representation of a closely-held company 'does not inherently mean' that the attorney for the corporation also represents the individual constituents." In fact, we have recognized that proposition of law many times. See Stanley v. Bobeck , 8th Dist. Cuyahoga No. 92630, 2009-Ohio-5696, 1999 WL 1240942, ¶ 15 ; Stuffleben v. Cowden , 8th Dist. Cuyahoga No. 82537, 2003-Ohio-6334, 2003 WL 22805065, ¶ 27. Nevertheless, when a corporation's officer reasonably believes that the corporation's counsel also represents him personally, an attorney-client relationship between the officer and corporation's counsel is created. See Bobeck at ¶ 16 ("[T]here is no evidence that Stanley believed that MRFL was acting as his personal attorneys when representing Sunshine I as Stanley never conferred with MRFL on legal matters.");

Abadir v. Fanous , 8th Dist. Cuyahoga No. 71871, 1997 WL 578782, *2 (Sept. 18, 1997) ("[I]n the case of a closely held corporation with two or three shareholders, a shareholder may have a reasonable belief that the attorney is representing him personally.").

{¶ 24} Memoranda from Corsaro himself describe thorough conversations that he had with Bradley and Jeffrey concerning the foundation's taxes and income information. Specifically, in a memorandum from Corsaro, dated July 10, 2012, Corsaro wrote:

The Wynveen Family Foundation was the next topic explored. [I] explained that the foundation received a favorable Determination Letter from the Internal Revenue Service and therefore is already a 501(c)3 and 501(c)9. * * * Additionally, the purpose of the Foundation was to provide Mr. Brad Wynveen and Mr. Jeff Wynveen a source of income in the future. Mr. Brad Wynveen * * * may be compensated by the Foundation for services rendered such as investment advice. Also, since Dr. Richard Wynveen is no longer capable of managing his financial affairs the current Trustees of the Wynveen Family Foundation are now Mr. Brad Wynveen and Mr. Jeff Wynveen.

Further, in a memorandum dated June 4, 2013, he wrote:

The Wynveen Family Foundation. [I] indicated that one possible strategy to solve the estate's liquidity problem is for Brad and Jeff to disclaim distributions to the Wynveen Family Foundation. Removing the value of the disclaimed asset will in turn significantly reduce the estate tax due. [I] suggested that Brad and Jeff disclaim their Vitec interests * * * into the Foundation. Brad stated that he would like to disclaim his interest in Vitec into the Foundation[.]

Despite Attorney Lindsey Smith's presence, Corsaro's ongoing advice and meetings with Bradley certainly gave Bradley reasonable cause to believe that Corsaro was representing his personal interests along with the foundation's.

{¶ 25} We cannot say, in light of the probate court's observations and supporting evidence, that its conclusion as to Dana 's first prong was unreasonable, arbitrary, or unconscionable. Therefore, we find that the probate court's determination that Bradley satisfied the first prong under the Dana test was not an abuse of its discretion.

B. Substantially Related

{¶ 26} Turning to the second prong, Corsaro argues that his firm's prior representations of Bradley are not substantially related to his counterclaim because it concerns transactions that were separate from the subject matter of the prior representations. Bradley argues that Corsaro & Associates' prior representations involved his own estate planning, rights as a beneficiary, property rights, and business interests, all of which are directly related to Corsaro's counterclaim.

{¶ 27} "[M]atters are substantially related if there is some 'commonality of issues' or a 'clear connection' between the subject matter of the former representation and that of the subsequent adverse representation." Majestic Steel , 8th Dist. Cuyahoga No. 76540, 1999 WL 961465, at *2, quoting Phillips v. Haidet , 119 Ohio App.3d 322, 695 N.E.2d 292 (3d Dist.1997) ; see also Shawnee Assocs., L.P. v. Shawnee Hills , 5th Dist. Delaware No. 07CAE050022, 2008-Ohio-461, 2008 WL 324111, ¶ 21 ("[T]o have a substantial relationship, * * * the factual contexts of the two representations must be similar or related.").

{¶ 28} Ohio appellate courts have found that an attorney's former and subsequent representations of a client are substantially related when those representations involve the same types of claims, arise out of the same case, or concern the same parties. See Litigation Mgt. v. Bourgeois , 182 Ohio App.3d 742, 2009-Ohio-2266, 915 N.E.2d 342, ¶ 17 (8th Dist.) (same claims); In re Smith , 11th Dist. Ashtabula Nos. 2005-A-0048 and 2005-A-0056, 2007-Ohio-893, 2007 WL 634243, ¶ 67 (same case and parties); Majestic Steel at *3 (same types of claims); but see Bank of Am., NA v. Valentine , 5th Dist. Delaware No. 12 CAE 03 0020, 2013-Ohio-598, 2013 WL 659088, ¶ 27 (affirming the trial court's determination that the actions were not substantially related because they involved different pieces of property and were pending at different times).

{¶ 29} In Stevens v. Grandview Hosp. & Med. Ctr. , 2d Dist. Montgomery No. 14042, 1993 WL 420127 (Oct. 20, 1993), the plaintiff sued the defendant-hospital for medical malpractice. In response, the hospital moved to disqualify plaintiff's attorney, who previously worked for the hospital for over 15 years and handled medical malpractice cases filed against it. The trial court granted the motion to disqualify the plaintiff's attorney, finding that the types of claims were similar, the attorney "must have acquired confidential information regarding [the hospital] in order to defend the hospital[,]" and the attorney had "knowledge of hospital policies and procedures, and procedures of staff physician rules and regulations[.]" Id. at *6. On review, the Second District found that the trial court set forth "very sufficient reasons for disqualifying [the] attorney" and the attorney's conduct "present[ed] a very definite impression of impropriety, which can only bring the reputation of the legal profession into further disrepute in the eyes of the general public." Id. at *7 and 8.

{¶ 30} Here, similar to the attorney in Stevens , Corsaro and members of Corsaro & Associates represented and consulted with members of the Wynveen family for over 20 years. During that time, Corsaro assisted Bradley with his estate planning, established numerous trusts, acted as-and is the current-trustee for some of those trusts, is the executor of Dr. Wynveen's estate of which Bradley is a beneficiary, assisted in the creation of the Wynveen Family Foundation, and advised Bradley of matters concerning Gainwell Limited Partnership. In a number of those representations, some of which remain current, Corsaro owes Bradley a fiduciary duty. Further, as pointed out by the Ohio Supreme Court in Krischbaum v. Dillon , 58 Ohio St.3d 58, 62, 567 N.E.2d 1291 (1991) :

Seldom is the client's dependence upon, and trust in, his attorney greater than when, contemplating his own mortality, he seeks the attorney's advice, guidance, and drafting skill in the preparation of a will to dispose of his estate after death. These consultations are often among the most private to take place between an attorney and his client. The client is dealing with his innermost thoughts and feelings, which he may not wish to share with his spouse, children and other next of kin.
Because of the decisions that go into the preparation of a will are so inherently private, * * * a client is unusually dependent upon his attorney's professional advice and skill when he consults the attorney to have a will drawn.

With that in mind, it is easy to conclude that Corsaro's involvement with Bradley's estate planning revealed a great deal of private information that will certainly be at issue in the current action.

{¶ 31} Further, that information is imputed to other members of Corsaro's law firm, including Attorney Beranek. "[U]nder the Code of Professional Responsibility, an attorney's knowledge is imputed to his firm." Majestic Steel , 8th Dist. Cuyahoga No. 76540, 1999 WL 961465, at *4, citing Ussury v. St. Joseph Hosp. , 43 Ohio App.3d 48, 539 N.E.2d 700 (8th Dist.1988) ; see also Cleveland Elec. , 440 F.Supp. at 209-210, citing Consol. Theatres, Inc. v. Warner Bros. Circuit Mgt. Corp. , 216 F.2d 920 (2d Cir.1954) ("In instances where courts have found disclosure of information by the client to one member of a law firm, such knowledge has traditionally been imputed to all members of his firm."). "Absent a showing that the members of the firm have not acquired any information from the disqualified attorney, that firm is likewise disqualified." Majestic Steel at *4, citing Ussury .

{¶ 32} Furthermore, Attorney Beranek was actually involved in the organization and representation of the Wynveen Family Foundation and Gainwell Limited Partnership, in which Bradley has a partnership interest. While those matters are not necessarily identical to the matter currently before this court, they concerned Bradley's assets, which are, or at the very least, will be at issue in this matter. Further, like the court found in Stevens , and in light of all of Corsaro & Associates' previous representations of Bradley and his family members, Attorney Beranek's continued representation of Corsaro impresses a strong sense of impropriety that will surely look questionable to the public at large.

{¶ 33} Therefore, we find that the trial court did not abuse its discretion in finding that the present lawsuit is substantially related to Corsaro's prior representations, which concerned Bradley's estate planning, rights as a beneficiary, and property interests. In his counterclaim against Bradley, Corsaro seeks to recover debts owed by Bradley to the BAW Trust and Dr. Wynveen's estate. The recovery of those debts is related to Bradley's assets, of which Corsaro has substantial knowledge. The makeup of Bradley's assets and rights will undoubtedly be scrutinized while adjudicating Corsaro's counterclaim because part of the debts allegedly owed involve monies now part of Bradley's assets. Therefore, we find that the trial court did not abuse its discretion in finding that Bradley satisfied the second prong of the Dana test.

C. Confidential Information

{¶ 34} Finally, as to the third prong of the Dana test requiring the disqualification of an attorney who acquired confidential information during a prior representation of the moving party, Corsaro argues that Bradley does not offer "one example of confidential information * * * allegedly communicated to Corsaro which Corsaro can use against him in the prosecution of the Counterclaim." In response, Bradley argues that the presumption of shared confidences applies and that confidential information has been shared, pointing to the instances when attorneys for Corsaro & Associates have handled his personal matters, advised him on his business interests, and organized and maintained trusts, under which he is a beneficiary.

{¶ 35} At the outset of this final prong, it is important to note that "[a] mere allegation that allowing the representation presents the possibility of a breach of confidence or the appearance of impropriety is not enough." Phillips v. Haidet , 119 Ohio App.3d 322, 327, 695 N.E.2d 292 (3d Dist.1997). In other words, "a court should not deny the opposing party its choice of counsel solely upon an allegation of a conflict." Centimark , 85 Ohio App.3d at 489, 620 N.E.2d 134.

{¶ 36} But "[t]he general rule in disqualification cases has been that, upon proof of a former attorney-client relationship concerning substantially related matters, disclosure of confidences is presumed." Cleveland Elec. , 440 F.Supp. at 209, citing T.C. Theatre Corp. v. Warner Bros. Pictures, Inc. , 113 F.Supp. 265 (S.D.N.Y.1953) ; see also In re E.M.J. , 9th Dist. Medina No. 15CA0098-M, 2017-Ohio-1090, 2017 WL 1148610, ¶ 17 ("Courts are to assume that during the course of the former representation, confidences were disclosed to the attorney bearing on the subject matter of the representation."). "As a matter of law, the disclosure of confidences to one's attorney can be presumed and need not be proven by the moving party." Harsh v. Kwait , 8th Dist. Cuyahoga No. 76683, 2000 WL 1474501, *2 (Oct. 5, 2000), citing Brant v. Vitreo-Retinal Consultants, Inc. , 5th Dist. Stark No. 1999CA00283, 2000 WL 502738 (Apr. 3, 2000). Instead, "where a substantial relationship exists, * * * the burden is on the party objecting to the disqualification to rebut the presumption." Litigation Mgt. v. Bourgeois , 182 Ohio App.3d 742, 2009-Ohio-2266, 915 N.E.2d 342, ¶ 19.

"[W]here an attorney himself represented a client in matters substantially related to those embraced by a subsequent case he wishes to bring against the former client, he is irrebuttably presumed to have benefitted from confidential information relevant to the current case. In such limited situations there is no necessity to demonstrate actual exposure to specific confidences which would benefit the present client."

Cleveland Elec. at 210, quoting Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp. , 518 F.2d 751 (2d Cir.1975). "However, when the attorney in the subsequent litigation is not the original attorney, but, instead another attorney in the same law firm, the presumption of received confidences becomes rebuttable." Stanley v. Bobeck , 8th Dist. Cuyahoga No. 92630, 2009-Ohio-5696, 2009 WL 3490668, ¶ 21, citing Luce v. Alcox , 165 Ohio App.3d 742, 2006-Ohio-1209, 848 N.E.2d 552 (10th Dist.).

{¶ 37} Corsaro argues throughout his appellate and reply briefs that Bradley has failed to specify the confidential information that Corsaro acquired during his prior representations. In light of the above case law, however, we find that Corsaro's arguments are unconvincing because, based on the substantial relation between the prior representations and counterclaim, the presumption of acquired confidences applies, and it is Corsaro's burden to rebut that presumption.

{¶ 38} Further, at oral argument in this case, Corsaro interestingly argued that since Bradley is suing his attorney, Corsaro is allowed to disclose the confidential information he acquired from his prior representations of Bradley to defend himself. Corsaro is correct that while Prof.Cond.R. 1.6 states that an attorney "shall not reveal information relating to the representation of a client, including information protected by the attorney-client privilege[,]" the rule allows the revelation of information relating to the attorney's prior representation of a client when the attorney reasonably believes it is necessary "to establish a claim or defense on behalf of the [attorney] in a controversy between the [attorney] and the client[.]" We agree that because Bradley is suing his former attorney, Corsaro is free to reveal confidential information to establish his counterclaim as reasonably necessary. Nevertheless, Rule 1.6's exception has no bearing on the Dana test, which only asks whether an attorney acquired confidential information. Here, we already found that the prior relationships between Corsaro and Bradley were substantially related, Corsaro's prior representations are imputed to Attorney Beranek, and therefore, a rebuttable presumption of acquired confidences applies.

{¶ 39} In Litigation Mgt. , 182 Ohio App.3d 742, 2009-Ohio-2266, 915 N.E.2d 342, we reviewed a trial court's order disqualifying the defendants' counsel. Discussing Dana 's third prong, we found that the presumption of shared confidences applied and that the disqualified attorney failed to rebut that presumption. Id. at ¶ 22, 23. Specifically, we found that the defendant's failure to "provide any evidence of a screen or 'Chinese wall' to prevent the sharing of any confidential information" was insufficient to rebut the presumption of acquired confidences. Id. As a result, we found that the trial court abused its discretion. Id.

{¶ 40} In Rosenblum v. Robbins , 9th Dist. Summit No. 15171, 1992 WL 15960 (Jan. 29, 1992), the plaintiff filed an action disputing the validity of a trust and hired an attorney, who previously handled the title for his property and prepared an escrow letter regarding that property. During that prior representation, the attorney knew that the plaintiff's property was to be placed in a trust, but he did not handle or organize the trust. In light of this information, the defendants moved to disqualify the plaintiff's attorney. The trial court granted the defendants' motion on the presumption that the plaintiff's attorney "could have obtained financial and other information concerning his former client." (Emphasis added.) Id. at *3. The Ninth District disagreed, finding that the defendants failed to "supply the trial court with any facts to establish that [the] former representation was adverse" to the plaintiff's attorney's current representation. Id. at *3. The court stated that:

[i]n fact, the evidence before the trial court demonstrates that [the attorney's] former representation of [the defendants] was merely ministerial, rather than adversary in nature. According to [the attorney's affidavit], his representation was limited to acquisition of title to the property and preparation of an escrow letter. [The attorney] did not handle any financing of the property, and he had no discussions with the [defendants] concerning the trust, its formation, or any of its terms.

Id. As a result, the Ninth District reversed the trial court's order disqualifying the plaintiff's attorney. Id.

{¶ 41} Like Litigation Mgt. , Bradley has established that the prior matters are substantially related and, therefore, that the presumption of shared confidences applies. Unlike Rosenblum, Corsaro's and Attorney Beranek's previous representations concerning Wynveen's interests were more than ministerial and allowed him to actually obtain a great deal of information related to Bradley's finances and assets. Corsaro has not sufficiently rebutted that presumption through evidence of a screen within Corsaro & Associates or other sufficient proof. In fact, Corsaro instead argues that the confidential information he acquired is irrelevant because it would not be used against Bradley in furtherance of Corsaro's counterclaim. But that is not what the third prong of the Dana test examines, and even if that information is not used to establish liability under the counterclaim, it will surely be used in execution of judgment.

{¶ 42} We find that the trial court's decision is supported by law, and we are unable to conclude that the decision was arbitrary, unreasonable, or unconscionable. Accordingly, we find that the trial court did not abuse its discretion in disqualifying Attorney Beranek.

{¶ 43} Judgment affirmed.

EILEEN T. GALLAGHER, P.J., and PATRICIA ANN BLACKMON, J., CONCUR