author: Hoffman, J.

text:
    STATE of Ohio, Plaintiff-Appellee v. Emile L. WEAVER, Defendant-Appellant
    No. CT2017-0075
    Court of Appeals of Ohio, Fifth District, Muskingum County.
    DATE OF JUDGMENT ENTRY: June 21, 2018
    D. MICHAEL HADDOX, Prosecuting Attorney, Muskingum County, Ohio, By: GERALD V. ANDERSON II, Assistant Prosecuting Attorney, Muskingum County, Ohio, 27 North Fifth St., P.O. Box 189, Zanesville, Ohio 43702-0189, For Plaintiff-Appellee
    NIKKI TRAUTMAN BASZYNSKI, Assistant State Public Defender, 250 East Broad Street, Suite 1400, Columbus, Ohio 43215, For Defendant-Appellant
    JUDGES: Hon. John W. Wise, P.J., Hon. William B. Hoffman, J., Hon. Craig R. Baldwin, J.
   Hoffman, J.

{¶ 1} Appellant Emile L. Weaver appeals the judgment entered by the Muskingum County Common Pleas Court dismissing her petition for postconviction relief without a hearing. Appellee is the state of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶ 2} During the spring of 2015, Appellant was a student at Muskingum University, residing in a campus sorority house on Lakeside Drive in New Concord. She denied and covered up the fact she was pregnant.

{¶ 3} On April 22, 2015, Appellant went into a bathroom in the sorority house and, without assistance, delivered a daughter, Addison Grace Weaver. The baby was delivered into the toilet. While bleeding profusely, Appellant delivered the placenta, cut the umbilical cord, and pulled the baby out of the toilet. She then placed the placenta and the baby in a small pail that was in the bathroom. She thereupon left the bathroom and rested on a couch.

{¶ 4} At some point, Appellant returned to the bathroom with a garbage bag and placed the baby, the placenta, paper towels, and some of her clothing inside the bag. She carried the bag to the side door of the sorority house and placed it outside, next to a garbage can. After this, she went back inside the house to lie down.

{¶ 5} Later that day, two sorority members found the bag lying next to the house. They tore a hole in the bag, saw the baby, and called the police.

{¶ 6} After first responders came to the scene, paramedics asked Appellant if she was the mother of the baby found outside. Appellant responded she was not the baby's mother. Appellant was also interviewed the same night by Detective Todd Mahle of the Muskingum County Sheriff's Office. The interview took place from 10:26 p.m. until 3:46 a.m. in a break room at the Muskingum University Police building. Appellant eventually detailed to the detective the events which had occurred earlier in the day, although she presented different versions as to whether Addison was born alive. Detective Mahle did not utilize any recording equipment during the interview. At Mahle's request, Appellant returned the next day at about noon to provide a recorded statement.

{¶ 7} An autopsy was subsequently performed on Addison. The results showed she had been born alive, but had died of asphyxiation. Tr. at 347, 350, 382.

{¶ 8} On July 22, 2015, Appellant was indicted by the Muskingum County Grand Jury on one count of aggravated murder, one count of gross abuse of a corpse, and two counts of tampering with evidence. The case proceeded to a jury trial commencing on May 10, 2016. Appellant was found guilty on all counts.

{¶ 9} At sentencing, the trial court merged the two tampering-with-evidence counts and imposed a one-year prison sentence on said offense. The trial court further imposed a three-year prison sentence for gross abuse of a corpse. It ordered these sentences to run consecutively to each other and to the sentence for aggravated murder. Finally, the trial court imposed life in prison without parole for the offense of aggravated murder. In support of its sentencing decision, the trial court concluded appellant was not remorseful, she had committed "the worst form of the offense," and she had caused emotional hardship to her sorority sisters. Sentencing Tr. at 10-16.

{¶ 10} Appellant filed an appeal to this Court raising four assignments of error: the trial court erred in imposing a sentence of life imprisonment without the possibility of parole, the sentence is disproportionate to her conduct, the court erred in imposing consecutive sentences, and the conviction of gross abuse of a corpse was not supported by sufficient evidence. We found we were without statutory authority to review the sentence for aggravated murder, and therefore overruled Appellant's first two assignments of error on the basis of lack of appellate jurisdiction. State v. Weaver , 5th Dist. Muskingum, 2017-Ohio-4374, 93 N.E.3d 178. We overruled her remaining assignments of error on the merits and affirmed the judgment of the trial court.

{¶ 11} Appellant filed a postconviction petition on August 25, 2017, an amended petition on September 5, 2017, and a second-amended petition on September 6, 2017. The State filed its response on September 18, 2017.

{¶ 12} In her petition, Appellant alleged counsel was ineffective for failing to present evidence concerning neonaticide in mitigation of sentence. She attached to her petition an affidavit of Dr. Clara Lewis, and an article by Michelle Oberman discussing neonaticide, including sentencing data. In her affidavit, Dr. Lewis, who is a professor at Stanford University, stated she read the transcript and docket from Appellant's trial. She also reviewed news media coverage of the case and social media posts available from Appellant and her friends. In addition, she conducted a personal interview with Appellant on August 23, 2017. The affidavit stated in her expert opinion, Appellant's case is a typical example of contemporary neonaticide, her sentence is disproportionately harsh when compared to sentences given to others convicted of the crime, and the defense failed to introduce relevant information about the social and cultural causes of neonaticide, which would have provided context for understanding the crime and established mitigation. In her affidavit and her attached report, Dr. Lewis explained how immaturity, social isolation, the insistence of her ex-boyfriend on secrecy during the pregnancy and the actions of her sorority sisters reinforcing her denial of the pregnancy caused Appellant to shut down and become deeply fearful. Dr. Lewis also noted in her affidavit:

Birth takes hours. It is a painful and noisy process. Doing it alone, in silence, in a shared bathroom speaks to Emile's abject terror, as well as to her belief that she had no one she could trust. Anyone might have averted this outcome by offering to help. Instead, she was left alone. Lewis affidavit, ¶ 15.

{¶ 13} In the report attached to her affidavit, Lewis further explained while many find it impossible to understand how and why a woman can commit the act of infanticide, psychiatrists explain there's a profile: "Women who commit neonaticide tend to be immature, isolated, worried about the judgment of others on issues ranging from sex to abortion to unwed motherhood." Research reveals women who commit neonaticide, including Appellant, receive no prenatal care, suffer from pregnancy denial, make no plans for their labor or delivery, and labor alone on toilets without medical care. When the baby arrives denial shatters and panic ensues. The crimes are not carefully planned, but rather are "poorly concealed acts of desperation."

{¶ 14} Dr. Lewis expressed the loss of the newborn's life is a tragedy for which Appellant deserved to be punished, but in her expert opinion, had the existing body of research on neonaticide been brought to bear on Appellant's sentence, it would have demonstrated substantial grounds to mitigate her individual culpability.

{¶ 15} The trial court dismissed the petition without a hearing. The court found Appellant's argument of ineffective assistance was barred by res judicata, as it could have been raised on direct appeal. The court further noted prior to trial Appellant was found competent to stand trial, and sane at the time she committed the offense.

{¶ 16} It is from the September 28, 2017 judgment dismissing her petition for postconviction relief Appellant prosecutes her appeal, assigning as error:

"THE TRIAL COURT ERRED WHEN IT DENIED EMILE WEAVER'S POSTCONVICTION PETITION WITHOUT A HEARING."

{¶ 17} When a defendant files a postconviction petition pursuant to R.C. 2953.21, the trial court must grant an evidentiary hearing unless it determines the files and records of the case show the petitioner is not entitled to relief. R.C. 2953.21(F). A trial court may also dismiss a petition for postconviction relief without holding a hearing when the doctrine of res judicata bars the claims raised in the petition. State v. Szefcyk , 77 Ohio St.3d 93, 671 N.E.2d 233. Under the doctrine of res judicata, a defendant who was represented by counsel is barred from raising an issue in a petition for postconviction relief if the defendant raised or could have raised the issue at trial or on direct appeal. Id. at 95, 671 N.E.2d 233.

{¶ 18} A trial court's decision to grant or deny a postconviction petition filed pursuant to R.C. 2953.21 should be upheld absent an abuse of discretion; a reviewing court should not overrule the trial court's finding on a petition for postconviction relief if it is supported by competent and credible evidence. State v. Gondor , 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58. However, as the Fourth District Court of Appeals has discussed, the question of the standard of review to apply when the petition is dismissed without a hearing was not addressed by Gondor :

As we noted in State v. Harrington , 172 Ohio App.3d 595, 2007-Ohio-3796, 876 N.E.2d 626, at ¶ 9, there is some uncertainty concerning the appropriate standard of review used by an appellate court when reviewing a trial court's decision to dismiss a petition for postconviction relief without an evidentiary hearing. See also State v. Hoffner , Lucas App. No. L-01-1281, 2002-Ohio-5201 [2002 WL 31162813], at ¶ 6. Appellate courts, including this one, have applied varying standards, including de novo, see State v. Gibson , Washington App. No. 05CA20, 2005-Ohio-5353 [2005 WL 2472063], abuse of discretion, see State v. McKnight , Vinton App. No. 07CA665, 2008-Ohio-2435 [2008 WL 2124076], and a mixed question of fact and law, see Harrington, supra . While the Supreme Court of Ohio held in State v. Gondor , 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, that courts of appeals are to apply an abuse of discretion standard in the context of reviewing a trial court's decision on a petition after it conducts an evidentiary hearing, it did not address the appropriate standard on this type of proceeding, i.e., where the trial court summarily dismisses a petition without a hearing. Because decisions denying such petitions involve both factual and legal questions, we apply a mixed question of law and fact standard of review to determine whether the petition states substantive grounds for relief. See Harrington, supra . Thus, we review the trial court's decision on factual issues using a manifest weight standard of review, and we review the trial court's decision on legal issues on a de novo basis. See Hoffner, supra .

{¶ 19} In re B.C.S. , 4th Dist. Washington No. 07CA60, 2008-Ohio-5771, 2008 WL 4823572, ¶ 9.

{¶ 20} The trial court found the claim of ineffective assistance of counsel raised in the petition was barred by res judicata. This is a question of law, and therefore we review the decision de novo.

{¶ 21} "Generally, the introduction in an R.C. 2953.21 petition of evidence dehors the record of ineffective assistance of counsel is sufficient, if not to mandate a hearing, at least to avoid dismissal on the basis of res judicata." State v. Cole , 2 Ohio St.3d 112, 114, 443 N.E.2d 169 (1982).

{¶ 22} The State argues Appellant failed to present evidence outside the record, as a "critique of her sentence that was created afterwards and an article discussing neonaticide that was published in 1996 are not evidence dehors the record." Brief of Appellee, p.6-7.

{¶ 23} We agree with the State the article by Michelle Oberman discussing neonaticide which Appellant attached to her petition is not evidence. However, we find the affidavit of Dr. Lewis and her attached report do constitute evidence outside the record. Dr. Lewis reviewed the case and conducted a personal interview with Appellant. Her affidavit and report are not simply a critique of the sentence, but rather explain neonaticide in general and as applied to Appellant. She further elaborates on the effect of the failure of counsel to present evidence concerning current research on neonaticide in mitigation of Appellant's sentence. Appellant's claim of ineffective assistance of counsel relies on evidence outside the record, and therefore could not have been presented on direct appeal. The court erred in finding the claim barred by res judicata.

{¶ 24} We also find the court erred in suggesting the claim is barred by res judicata because Appellant was found competent to stand trial, and found to be sane at the time of the offense. Evidence of neonaticide presented in mitigation of sentencing is not governed by the same legal standard required to demonstrate a person is incompetent to stand trial or not responsible for their actions due to insanity at the time of the offense. In fact, Dr. Lewis specifically stated Appellant should be punished for her crime.

{¶ 25} Finally, while the court also notes the same mitigation argument was made on direct appeal, we held on direct appeal we lacked jurisdiction to consider either the propriety or the proportionality of the sentence pursuant to R.C. 2953.08(D)(3). State v. Weaver, supra, ¶ 16-25. Therefore, the claim could not be addressed on direct appeal.

{¶ 26} The State further argues the evidence presented by Appellant does not meet a "threshold standard of cogency" to defeat a claim of res judicata as required by State v. Lawson , 103 Ohio App. 3d 307, 659 N.E.2d 362 (12th Dist. Clermont 1995), which states,

Evidence presented outside the record must meet some threshold standard of cogency; otherwise it would be too easy to defeat the holding of [State v. ] Perry [10 Ohio St.2d 175, 226 N.E.2d 104 (1967) ] by simply attaching as exhibits evidence which is only marginally significant and does not advance the petitioner's claim beyond mere hypothesis and a desire for further discovery.
Id. at 315, 659 N.E.2d 362.

{¶ 27} In the instant case, counsel mentioned neonaticide only in passing in his argument to the court regarding sentence:

With regard to this particular offense, unfortunately, across this country there will be 2 to 300 young girls who will commit this offense. That is not an individual problem, but it is a societal problem that we have. This offense most typically is the result of exposure only second [sic] by asphyxiation by placing a child in a trash bag.
I understand that when it comes to sentencing, the Court has to consider whether or not its sentence will deter others from committing this offense. Until we address in the greater issue of neonaticide, that deterrence, regardless of the sentence, will not be affected.
Sent. Tr. 6-7.

{¶ 28} In sentencing Appellant to life without possibility of parole, the court stated in pertinent part:

Upon review of the presentence investigation, the Court will note several things. One, I did hear the case, and I did hear your comments. I'm told that you have remorse. At the time you talked with Detective Mahle, it was said more than once that you were more concerned for your own safety than that of the baby's. And you gave your taped statement: I was more concerned about me and my wellbeing. I didn't do anything to keep her alive. Why? I was more concerned about myself. That does not show or verbalize any type of remorse about what happened.
The Court also got to see and read the text message you sent later that day that you took care of the problem. That was probably the most truthful statement you made that entire day. You did take care of your problem. It was a problem to you. It was an inconvenience, and you took care of it.
Sent. Tr. 10.

{¶ 29} After reading a letter written by Appellant concerning the death of the baby, the court continued:

In those four short paragraphs, you mention I 15 times, and my 5 times. Once again, it's all about you. To have killed your child and walk up and look at them in the casket, I just can't imagine.
What you have put other people through in this case is terrible, and I'm going to read to you some of the excerpts of what you have put these people through, and they are put through every day of their lives. Sent. Tr. 12.

{¶ 30} After reading excerpts of letters from Appellant's sorority sisters, as well as from Appellant's family, the court concluded:

I can understand that people may feel sympathy for you if they don't know what happened in this case, but what I find in this case is that for a number of months, you tried over and over to take that baby's life. As indicated from the letters from the sorority sisters, you would starve yourself from time to time; you would fall down a lot; you engaged in risky activities from drinking and smoking pot to playing dodgeball. You went to get birth control, then you got the Black Cohosh, and 80 out of 100 pills in about two weeks were taken, or at least not in the bottle anymore. You knew that by opening that bottle could cause a miscarriage.
For all this, the Court finds that, one, you committed the worst form of the offense. It's aggravated murder based upon the age of the victim. You can't get any younger than this victim, so it's the worst form of the offense.
As indicated by the prosecutor, your relationship to the victim caused it. It was your own child. Mothers are supposed to protect and nurture their children, not kill them just because it was inconvenient. Sent. Tr. 15-16.

{¶ 31} The affidavit and report of Dr. Clara Lewis submitted with Appellant's petition for postconviction relief explained the psychiatric and cultural issues surrounding neonaticide far beyond counsel's casual mention at the sentencing hearing, and provided information to contextualize the same actions which the court used to support the sentence of life without possibility of parole. The evidence is directly in contravention of the arguments of the State accepted by the judge in imposing the harshest sentence available for the offense. We find the evidence submitted with Appellant's petition meets the threshold level of cogency to defeat a claim of res judicata.

{¶ 32} We conclude the court erred as a matter of law in dismissing the petition without a hearing on the basis of res judicata. The assignment of error is sustained.

{¶ 33} The judgment of the Muskingum County Common Pleas is reversed. This case is remanded to that court with instructions to conduct an evidentiary hearing on Appellant's petition for postconviction relief.

Wise, John, P.J. and Baldwin, J. concur


source: Caselaw Access Project

author: Donofrio, J.

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellant, v. Rufus BARNETT, Defendant-Appellee.
    No. 17 MA 0055
    Court of Appeals of Ohio, Seventh District, Mahoning County.
    Dated: June 22, 2018
    OPINION AND JUDGMENT ENTRY
   Donofrio, J.

{¶ 1} Plaintiff-appellant, the State of Ohio, appeals from a Mahoning County Common Pleas Court judgment granting a motion to suppress evidence obtained when officers of the Youngstown Police Department impounded and subsequently searched the vehicle of defendant-appellee, Rufus Barnett.

{¶ 2} The facts in this case are undisputed. Officers Savnik and Caraway from the Youngstown Police Department were patrolling the south side of the city of Youngstown on October 11, 2016. Around 1:00 a.m., Officers Savnik and Caraway began to follow appellee's car as it was traveling down Oak Hill Avenue (Oak Hill) towards Mahoning Avenue (Mahoning). Officers Savnik and Caraway followed appellee's car for several blocks totaling around 200 yards. At this point, the officers did not observe appellee commit any traffic violations.

{¶ 3} When appellee arrived at the intersection of Oak Hill and Mahoning (intersection), Officers Savnik and Caraway were still following him. Oak Hill ends at this intersection. At Mahoning, Oak Hill heading north turns into two lanes, the left lane to travel on Mahoning away from downtown Youngstown and the right lane to travel on Mahoning towards downtown Youngstown. On the right hand side of the intersection on Oak Hill is a traffic sign that indicates the left lane is a left-turn only lane and the right lane is a straight-bound lane. Despite the traffic sign indicating the right lane as a straight-bound lane, a slight right turn must be negotiated when traveling from Oak Hill to Mahoning heading towards downtown Youngstown. Additionally, there is a traffic sign at the intersection facing Oak Hill that reads "No Turn on Red." When appellee arrived at the intersection, he moved into the right lane and the traffic light was red. Appellee did not have a turn signal on when he arrived at the intersection.

{¶ 4} After coming to a complete stop at the intersection, when the light turned green, appellee activated his right turn signal and proceeded on Mahoning into downtown Youngstown. Officers Savnik and Caraway initiated a traffic stop of appellee for a violation of R.C. 4511.39 in that appellee did not have his turn signal activated for at least 100 feet prior to performing a turn.

{¶ 5} Officer Savnik then began talking to appellee. Officer Savnik asked appellee for his operator's license but appellee could not produce his license and instead gave Officer Savnik his name and date of birth. Officer Savnik checked appellee's name through the LEADS system which indicated that appellee was under an FRA license suspension. As appellee was the only person in the car, Officer Savnik frisked appellee for weapons, placed appellee in the back of his squad car, had appellee's car impounded, and called a tow truck to retrieve the car.

{¶ 6} After appellee's car was impounded, Officer Savnik performed an administrative inventory search of the car. Officer Savnik discovered a package containing what he believed was heroin in the door panel of the passenger side of appellee's car. Officer Savnik then arrested and charged appellee with possession of heroin in violation of R.C. 2925.11(C)(6)(a), a felony of the fifth degree, and had appellee transported to the Mahoning County Jail.

{¶ 7} Appellee filed a motion to suppress evidence obtained from the search of his car. The basis for the motion was that appellee substantially complied with the requirements of R.C. 4511.39 in that he signaled his intention to make a turn prior to making a turn. Moreover, appellee argued that the "spirit" of R.C. 4511.39 is not violated simply because a person may fail to signal an intention to make a turn prior to 100 feet before the turn is made. Appellee argued that because the stop was unlawful, the evidence should have been suppressed. In the alternative, appellee argued that even if the traffic stop was valid, he was made subject to an unlawful arrest because neither R.C. 4511.39 nor driving under an FRA suspension warranted an arrest as appellee was placed in the back of Officer Savnik's cruiser.

{¶ 8} The state's response to appellee's motion to suppress argued that Officers Savnik and Caraway witnessed a traffic violation and had sufficient reasonable suspicion to initiate the traffic stop of appellee. Additionally, the state argued that pursuant to the Youngstown Municipal Code and case law, Officer Savnik had authority to impound appellee's vehicle and perform an inventory search under the circumstances surrounding appellee's traffic stop.

{¶ 9} At the end of the suppression hearing, the trial court instructed counsel for both the state and appellee to provide the court with additional written arguments pertaining to appellee's duty to signal at the intersection. The trial court seemed to want more information regarding appellee's duty to signal a turn when the posted traffic device indicates the lane is straight-bound. (Supp. Tr. at 55).

{¶ 10} Appellee then filed a supplemental brief after the suppression hearing. In his supplemental brief, appellee argued that because the signage at the intersection labeled appellee's lane of travel as a straight-bound lane, appellee was under no obligation to signal a turn.

{¶ 11} After appellee's supplemental brief was filed, the state filed a motion to reopen the suppression hearing on the basis that appellee was now raising new arguments not addressed in appellee's original motion to suppress. The record does not indicate that the trial court ruled on this motion but the state did not raise this issue for appeal.

{¶ 12} Ultimately, the state did file a supplemental brief arguing again that because appellee had to physically turn his car to the right on Mahoning from Oak Hill, appellee was required to use his turn signal. In the alternative, the state argued that the good faith exception to the exclusionary rule applied because Officers Savnik and Caraway reasonably believed they witnessed appellee commit a traffic violation.

{¶ 13} The state also filed a motion to admit stipulations of facts. The motion contained two facts to supplement the facts elicited at the suppression hearing. Those facts were: a standard traffic light exists at the intersection where a 45 degree right angle existed on the green light and a "No Turn on Red" sign was present at the intersection. There was no apparent ruling on this motion either, but appellee has never contested these facts.

{¶ 14} On March 10, 2017, the trial court granted appellee's motion to suppress and ruled that any and all evidence gathered as a result of appellee's traffic stop was to be suppressed. The trial court reasoned that appellee was not required to signal a turn because of the street sign indicating that his lane of travel was a straight-bound lane and that the good faith exception did not apply due to the lack of sufficient facts presented by the state. The state timely filed this appeal on March 23, 2017. The state raises one assignment of error.

{¶ 15} The state's sole assignment of error states:

THE TRIAL COURT SHOULD HAVE DENIED DEFENDANT'S MOTION TO SUPPRESS BECAUSE YOUNGSTOWN OFFICER JEFF SAVNIK HAD PROBABLE CAUSE TO BELIEVE DEFENDANT VIOLATED R.C. 4511.39 WHEN HE EFFECTUATED A TRAFFIC STOP OF DEFENDANT'S VEHICLE AND THE EXCLUSIONARY RULE DOES NOT APPLY BASED UPON DEFENDANT'S SUSPENDED LICENSE.

{¶ 16} The state raises two arguments regarding its sole assignment of error. The first argument is that Officer Savnik had probable cause to initiate the traffic stop of appellee for a violation of R.C. 4511.39 when appellee traveled from Oak Hill to Mahoning without using a turn signal prior to 100 feet before turning. The state supports this argument with case law citing similar circumstances and a case stating that just because a conviction could not be obtained on a traffic violation does not negate the fact that probable cause for a traffic stop exists. The state's second argument is that even if the requisite level of suspicion was not present at the time Officer Savnik initiated the traffic stop of appellee, the attenuation doctrine applies and the exclusion of any evidence from the inventory search was improper.

{¶ 17} A motion to suppress presents a mixed question of law and fact. When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate witness credibility. State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. The appellate court must accept the trial court's findings of fact if they are supported by competent and credible evidence. Id. Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard. Id.

{¶ 18} Addressing the state's second argument concerning the attenuation doctrine first, the state failed to raise this issue with the trial court in its original response to appellee's motion to suppress, the suppression hearing itself, or in its response brief after the hearing on the motion to suppress. The general rule is that "an appellate court will not consider any error which counsel for a party complaining of the trial court's judgment could have called but did not call to the trial court's attention at a time when such error could have been avoided or corrected by the trial court." State v. Awan , 22 Ohio St. 3d 120, 489 N.E.2d 277 (1986) citing State v. Childs , 14 Ohio St. 2d 56, 236 N.E.2d 545 (1968). Because the state did not raise the attenuation doctrine argument with the trial court, such argument will not be considered in this appeal.

{¶ 19} Concerning the state's requisite level of suspicion argument, the trial court's findings of fact during the suppression hearing were previously set forth. As neither the state nor appellee disputes the facts and the trial court's findings of fact are supported by competent and credible evidence from the record, this Court accepts the trial court's findings of fact as true.

{¶ 20} Applying the law to the facts, the Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution guarantee the right to be free from unreasonable searches and seizures. State v. Mays , 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204 ¶ 7. A traffic stop is constitutionally valid only if an officer has reasonable and articulable suspicion that a motorist has committed, is committing, or is about to commit a crime. Id. citing Delaware v. Prouse , 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). "The propriety of an investigative stop by a police officer must be viewed in the light of the totality of the surrounding circumstances." Id. quoting State v. Freeman , 64 Ohio St.2d 291, 414 N.E.2d 1044 (1980).

{¶ 21} The state's primary argument is that regardless of the signage at the intersection, appellee had to physically negotiate a right turn on to Mahoning to head to downtown Youngstown. The state cites several cases in support of its argument that regardless of how slight a right turn may be, a signal indicating a right turn is still necessary pursuant to R.C. 4511.39.

{¶ 22} In State v. Barker , 10th Dist. No. 11AP-170, 2011-Ohio-5769, 2011 WL 5353103, the Tenth District held that a traffic stop for failing to use a turn signal was reasonable when defendant-appellant Baker veered right at a "Y" intersection. The Ninth District has held similarly to the Barker decision on a similar issue in State v. Hoder , 9th Dist. No. 03CA0042, 2004-Ohio-3083, 2004 WL 1343573. The state even cites this Court's decision in State v. Crisafi , 7th Dist. No. 00 CA 0040, 2001 WL 503065, where this Court ruled that probable cause for a traffic stop existed when defendant-appellant Crisafi made a "slight-right" turn without signaling. While these cases are informative regarding the duty of a motorist to signal a turn, the case at bar is distinguishable because none of the state's cited cases address the issue of a street sign informing the respective motorists that their designated lane of travel was straight-bound.

{¶ 23} A strict reading of the relevant Revised Code sections is necessary to determine if reasonable suspicion to initiate a traffic stop of appellee existed. R.C. 4511.39 itself states "When required, a signal of intention to turn or move right or left shall be given continuously during not less than the last one hundred feet traveled by the vehicle." As the traffic sign indicated that appellee's lane of travel was in fact straight bound, appellee was not required to signal.

{¶ 24} Furthermore, R.C. 4511.01(Q)(Q) defines traffic control device, in part, as a sign used to regulate, warn, or guide traffic that is placed on, over, or adjacent to a street by authority of a public agency or official having jurisdiction. The Ohio Manual of Uniform Traffic Control Devices for Streets and Highways (OMUTCD) is a document published by the Ohio Department of Transportation and it is the basis for placing and maintaining traffic control devices pursuant to R.C. 4511.11. Pursuant to R.C. 4511.11(A), local authorities in their jurisdiction shall place traffic control devices that conform to the OMUTCD to "indicate and carry out sections 4511.01 to 4511.76 * * * of the Revised Code * * *."

{¶ 25} If the purpose of traffic control devices, including signs, is to indicate and carry out various traffic infractions, including failure to signal a turn in violation of R.C. 4511.39, then the sign at issue indicates that appellee had no duty to signal a turn when Officers Savnik and Caraway initiated a traffic stop. Regardless of the physical necessity to turn slightly to the right when traveling from Oak Hill to Mahoning heading into downtown Youngstown, appellee was in a lane that was designated by a valid traffic control device as a straight-bound lane of travel. At no point did the state challenge the validity of the traffic sign at issue. Ultimately, there was no reasonable suspicion to initiate a traffic stop of appellee. Whatever the reason Officers Savnik and Caraway initiated the traffic stop of appellee, the underlying fact is that there was no suspicion that appellee committed, was committing, or was going to commit a traffic offense. Appellee complied with a validly placed traffic control device when he traveled from Oak Hill to Mahoning. And while at the intersection, but before appellee proceeded right, he did in fact signal.

{¶ 26} Furthermore, as the state points out, it is worth noting that there is a second sign at the intersection facing Oak Hill which reads "no turn on red." There are two signs at the intersection: one that indicates the right lane is straight-bound and one that, potentially, indicates that the right lane is used to turn right. The fact that these conflicting signs exist creates the issue that it is virtually impossible to completely comply with all Ohio traffic laws at this particular intersection or any intersection where conflicting signs may exist. If a person were to signal a turn when traveling from Oak Hill to Mahoning towards downtown Youngstown, police could use the straight lane designation sign as reasonable suspicion to initiate a traffic stop. If a person were to not signal in time, as in this case, then police could use the no turn on red sign as reasonable suspicion to initiate a traffic stop. The fact that there are conflicting signs at the intersection that potentially create blanket reasonable suspicion for every car traveling from Oak Hill to Mahoning is bothersome.

{¶ 27} Additionally, the state argues that the trial court held it to a higher burden of proof than a normal suppression hearing. Citing In re A.J.S. , 120 Ohio St. 3d 185, 2008-Ohio-5307, 897 N.E.2d 629, the state argues that the burden of establishing probable cause is "to produce evidence that raises more than a mere suspicion of guilt." The state appears to argue that because the trial court granted appellee's motion to suppress, the state was held above the standard set forth in J.L.S. This did not happen here.

{¶ 28} Even in the absence of probable cause, an officer may initiate a traffic stop when the officer has reasonable and articulable suspicion that a crime has been or is being committed. State v. Foster , 1st Dist., 2017-Ohio-4036, 90 N.E.3d 1282, ¶ 16 citing State v. Mays , 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204. The propriety of an investigative stop must be viewed in light of the totality of the surrounding circumstances. State v. Ward , 7th Dist. No. 10 CO 28, 2011-Ohio-3183, 2011 WL 2556837, ¶ 50 citing Mays .

{¶ 29} Officers Savnik and Caraway followed appellee for about 200 yards. There is no evidence in the record that appellee was driving erratically. There is also no evidence in the record that there was anything wrong with appellee's car such as broken lights or a missing license plate. The only evidence in the record which explains why Officers Savnik and Caraway stopped appellee was due to his failure to signal before the intersection. This alone does not rise to the level of reasonable suspicion to initiate a traffic stop.

{¶ 30} Appellee was traveling in a designated straight-bound lane. Pursuant to R.C. 4511.39, a motorist need only signal when required. By not signaling, appellee was complying with a validly placed traffic control sign. Viewing the totality of the circumstances, there was no reasonable suspicion for Officers Savnik and Caraway to believe that appellee committed or was committing a traffic violation.

{¶ 31} The good faith exception does not apply in this case either. In order for the good faith exception to the exclusionary rule to apply, officers must be acting in an objectively reasonable manner. See State v. McGee , 7th Dist., 2013-Ohio-4165, 996 N.E.2d 1048, ¶ 18 citing State v. George , 45 Ohio St.3d 325, 544 N.E.2d 640 (1989), see also State v. Dickman , 10th Dist., 2015-Ohio-1915, 34 N.E.3d 488, ¶ 23. Based on the statute, which mandates a motorist's duty to signal only when required, and the fact that appellee was in a lane designated as straight-bound, an objectively reasonable officer would not have concluded that appellee's lack of a turn signal was a violation of R.C. 4511.39.

{¶ 32} Accordingly, the state's sole assignment of error is without merit and is overruled.

{¶ 33} For the above reasons, the trial court's judgment is hereby affirmed.

Waite, J., concurs

Robb, P.J., dissents with dissenting Opinion attached

Robb, P.J., dissenting opinion.

{¶ 34} I respectfully dissent from the decision to uphold the trial court's suppression of evidence. I believe the police officer possessed reasonable suspicion that a traffic violation occurred allowing him to stop Appellee's vehicle.

{¶ 35} "[I]f an officer's decision to stop a motorist for a criminal violation, including a traffic violation, is prompted by a reasonable and articulable suspicion considering all the circumstances, then the stop is constitutionally valid. State v. Mays , 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 8 ; Delaware v. Prouse , 440 U.S. 648, 663, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). In other words, a police officer's objectively reasonable belief that a traffic violation has occurred constitutes reasonable suspicion to justify a traffic stop. Heien v. North Carolina , --- U.S. ----, 135 S.Ct. 530, 536, 190 L.E.2d 475 (2014). A court's decision on the validity of the traffic stop must be "based on the collection of factors, not on the individual factors themselves." Mays , 119 Ohio St.3d 406, 894 N.E.2d 1204 at ¶ 12, quoting State v. Batchili , 113 Ohio St.3d 403, 2007-Ohio-2204, 865 N.E.2d 1282, ¶ 11. The Mays Court explained:

Probable cause is certainly a complete justification for a traffic stop, but we have not held that probable cause is required. Probable cause is a stricter standard than reasonable and articulable suspicion. The former subsumes the latter. Just as a fact proven beyond a reasonable doubt has by necessity been proven by a preponderance, an officer who has probable cause necessarily has a reasonable and articulable suspicion, which is all the officer needs to justify a stop.

(Citations omitted). Mays , 119 Ohio St.3d 406, 894 N.E.2d 1204 at ¶ 23.

{¶ 36} In Mays , the defense argued the officer who stopped him for crossing a lane line had no reason to suspect the defendant failed to ascertain the move could be safely performed or to suspect the defendant failed to stay within his lane as nearly as practicable. See R.C. 4511.33(A)(1) (on certain types of roads a vehicle "shall be driven, as nearly as is practicable, entirely within a single lane or line of traffic and shall not be moved from such lane or line until the driver has first ascertained that such movement can be made with safety."). The Ohio Supreme Court noted the relevant statute did provide for certain conditions under which a driver can cross a lane line without violating the statute but concluded "the question of whether Appellee might have a possible defense to a charge of violating [the traffic statute] is irrelevant in our analysis of whether an officer has a reasonable and articulable suspicion to initiate a traffic stop." Mays , 119 Ohio St.3d 406, 894 N.E.2d 1204 at ¶ 17 (adding the officer need not ascertain whether the driver might have a legal defense). See also Bowling Green v. Godwin , 110 Ohio St.3d 58, 2006-Ohio-3563, 850 N.E.2d 698, ¶ 6-9, 15-16 (improper signs at exit to city parking lot did not invalidate stop of driver who violated the signs as "the fact that appellee could not be convicted of failure to obey a traffic-control device is not determinative of whether the officer acted reasonably in stopping and citing him for that offense.")

{¶ 37} As does the majority, I find informative the various appellate cases finding a traffic stop was reasonable where the motorist failed to use a turn signal when changing streets at a T intersection or Y intersection. See, e.g. , State v. Barker , 10th Dist. No. 11AP-170, 2011-Ohio-5769, 2011 WL 5353103, ¶ 12-13 (finding reasonable suspicion to stop where motorist veered right at Y intersection onto a different street without signaling, even though the turn was not well-defined); State v. Beacham , 4th Dist. No. 03CA36, 2003-Ohio-6211, 2003 WL 22763534, ¶ 11, 16 (finding the stop was valid where driver failed to signal a turn where intersecting street was at a forty-five degree angle as opposed to a traditional ninety-degree angle); See also State v. Hoder , 9th Dist. No. 03CA0042, 2004-Ohio-3083, 2004 WL 1343573, ¶ 16 (rejecting motorist's testimony that he was not required to use a turn signal where his lane of travel indicated that he must proceed at the Y intersection onto a different street); State v. Crisafi , 7th Dist. No. 00-CA-40, 2001 WL 503065 (May 3, 2001) (slight right veering onto different street with greater movement left to stay on current street).

{¶ 38} The fact the vehicle's movement onto a different street may not require a ninety-degree turn does not eliminate an officer's reasonable suspicion concerning a turn signal violation. As the state points out, a right turn had to be physically negotiated to leave Oak Hill and turn onto Mahoning Avenue at the Spring Common Bridge. The majority finds the situation here distinguishable from other cases because a street sign near the intersection portrayed the right lane with a straight arrow. (And, the sign portrayed the left lane with an arrow pointing to the left.) The majority concludes Appellee was in a lane designated as a straight lane. Because the street on which Appellee was driving did not continue straight but stopped at the T-like intersection, the majority believes the straight arrow must mean the right turn is considered straight to whatever government agency placed the sign and this in turn constitutionally prohibits an officer from stopping a vehicle who does not use its turn signal to turn right onto the bridge. I disagree.

{¶ 39} As aforementioned, the officer testified a right-hand turn had to be negotiated from Oak Hill Avenue onto the cross-street of Mahoning Avenue at the Spring Common Bridge. Appellee made that right turn after stopping for the red light and waiting for it to turn green. The photographs submitted by Appellee depict how an approaching vehicle's future movement onto the bridge would be a clear turn to the right. As for the lane designation sign on a pole on the side of the road, support is not provided for the proposition that a straight arrow means "straight only." Otherwise, an intersection with this signage would not allow a right turn at a standard four-way intersection. Whether there is currently a way to proceed straight does not eliminate an officer's reasonable suspicion to believe a turn signal was required where a vehicle negotiated a right turn onto a different road. I pose the question: what would happen in the case of a road which is blockaded for a short-term event or barricaded for a long-term construction project? Would a driver no longer be required to use his turn signal as long as the situation existed which impeded a driver's ability to continue straight onto the same street? Contrary to the majority's concern, this situation does not make it "impossible to completely comply with all Ohio traffic laws * * *." Using a turn signal to make an obvious right turn onto a different street after waiting for the light to turn green at an intersection is not illegal.

{¶ 40} I do not perceive a meaningful conflict between the straight arrow sign and the street situation; not where the applicable test is whether the officer had reasonable and articulable suspicion for a traffic violation. Regardless, any conflict between the sign and the street situation would be a defense to the traffic offense, as opposed to the per se elimination of reasonable suspicion for a traffic stop. The officer was not required to study the potential defenses to the traffic violation the driver may have available before activating his lights. See Mays , 119 Ohio St.3d 406, 894 N.E.2d 1204 at ¶ 17. It is the totality of the circumstances governing reasonable suspicion for a stop, not one individual circumstance. Id. at ¶ 12, quoting Batchili , 113 Ohio St.3d 403, 865 N.E.2d 1282 at ¶ 11.

{¶ 41} I would also note the following facts. After the suppression hearing, the trial court asked for briefs on the issue of the sign with the straight arrow. The state filed a brief and separately moved to reopen the suppression hearing due to lack of notice there was a suppression issue on the topic of signs. Thereafter, on February 9, 2017, the state filed a "motion to admit stipulation of facts" which facts the parties agreed a reopened hearing would show. The filing refers to a conversation with defense counsel and states "both counsel for the State and counsel for the Defendant do not object to the following facts being admitting into evidence" (apparently in lieu of reopening): (1) the green light section of the traffic signal contained a green arrow pointing in a forty-five-degree angle; and (2) a "No Turn on Red" sign was hanging above the intersection. The filing does not contain defense counsel's signature. The court's March 10, 2017 suppression decision does not mention these offered stipulated facts. The state's brief refers to the "No Turn on Red" sign. Appellee's brief also cites this filing in relating the fact that there was a "No Turn on Red" sign at the stoplight, essentially inviting this court to consider this fact as well. This fact makes the case for reasonable suspicion even stronger.

{¶ 42} Finally, a review of the United States Supreme Court's Heien case is warranted. In Heien, the state trial court denied a motion to suppress finding reasonable suspicion to stop a vehicle due to a faulty brake light. The appellate court reversed and held the statutory language, requiring a car to be "equipped with a stop lamp," only mandates a single lamp and thus the officer lacked reasonable suspicion for the stop. The North Carolina Supreme Court disagreed, holding that even if the driver did not violate the law, the officer's mistaken understanding of the law was reasonable, making the stop valid. The United States Supreme Court agreed finding there was reasonable suspicion justifying the stop under the Fourth Amendment because the officer's mistake was objectively reasonable. Heien , --- U.S. ----, 135 S.Ct. at 540.

{¶ 43} The United States Supreme Court clarified that both a mistake of fact and a mistake of law can justify a stop if the mistake was objectively reasonable. Id. at 539. "Reasonable suspicion arises from the combination of an officer's understanding of the facts and his understanding of the relevant law. The officer may be reasonably mistaken on either ground." Id. at 536. The Court said its pronouncement related to (and validated) the constitutionality of the stop itself (and was not merely an exception to the exclusionary rule). Id. at 538-539. The Court explained:

Just as an individual generally cannot escape criminal liability based on a mistaken understanding of the law, so too the government cannot impose criminal liability based on a mistaken understanding of the law. If the law required two working brake lights, [the defendant] could not escape a ticket by claiming he reasonably thought he needed only one; if the law required only one, [the officer] could not issue a valid ticket by claiming he reasonably thought drivers needed two. But just because mistakes of law cannot justify either the imposition or the avoidance of criminal liability, it does not follow that they cannot justify an investigatory stop. And [the defendant] is not appealing a brake-light ticket; he is appealing a cocaine-trafficking conviction as to which there is no asserted mistake of fact or law.

(Emphasis added.) Id. at 540.

{¶ 44} Even if the officer here was mistaken as to the applicability of the turn signal statute at an intersection such as exists here, any mistake would have been objectively reasonable. For all of the foregoing circumstances, I believe there was reasonable suspicion to stop Appellee after he turned right onto a different street without complying with the turn signal statute. In according, I would reverse the trial court's decision suppressing the heroin evidence.

      The majority expresses concern an officer could use the sign with the straight arrow to stop a driver for using his right turn signal at this intersection (i.e., the officer could stop a driver for doing what the officer said Appellee should have done); however, no law is cited prohibiting the cautionary use of a turn signal at a T or Y intersection (even if, for instance, the movement was onto the same street). See, e.g. , State v. Fears , 8th Dist. No. 94997, 2011-Ohio-930, 2011 WL 765675 (no reasonable suspicion for articulated traffic offense as officers mistakenly thought it was an offense to use turn signal at intersection without turning).


author: TEODOSIO, Presiding Judge.

text:
    Thomas BROWN, et al., Appellant v. Yvonne TERRELL, et al., Appellee
    No. 28845
    Court of Appeals of Ohio, Ninth District, Summit County.
    Dated: June 27, 2018
    JESSICA M. BACON, Attorney at Law, Boston Heights, for Appellant.
    PAUL R. MORWAY, Cleveland, and DAVID P. STADLEY, Attorneys at Law, for Appellee.
    DECISION AND JOURNAL ENTRY
   TEODOSIO, Presiding Judge.

{¶ 1} Plaintiff-Appellant, Thomas Brown, appeals from the order of the Summit County Court of Common Pleas granting summary judgment in favor of Defendant-Appellee, Yvonne Terrell ("Yvonne"). This Court affirms.

I.

{¶ 2} In February of 2016, Mr. Brown's seven-year-old son ("T.L.") was playing ball outside with his sister on their driveway. At some point, the ball rolled into a space close to where the next-door neighbor's pit bull was chained. The dog broke free from its chain and attacked T.L. The dog bit through T.L.'s ankle and fractured the bone, which required surgery and implants. The owner of the dog, Territa Terrell ("Territa"), lived next door at 758 Kipling Street, Akron, Ohio. Territa's grandmother, Yvonne, co-owns the house at 758 Kipling Street with her brother, but neither of the two siblings has lived there recently. Yvonne permits Territa to live there, but no written lease agreement exists. Territa rarely pays rent, but does pay for utilities at the house. Yvonne pays for homeowners' insurance and was initially paying a friend to perform maintenance on the property, but at some point Territa took over the maintenance responsibilities.

{¶ 3} Mr. Brown filed a personal injury complaint on behalf of his son against Territa and Yvonne for both common law negligence and strict liability, seeking damages for medical expenses and pain and suffering as a result of the dog bite. He alleged that Territa owned the dog while Yvonne kept or harbored the animal. Yvonne filed a motion for summary judgment claiming that she was not the owner, keeper, or harborer of the dog. Allstate Indemnity Company ("Allstate") intervened as a third-party defendant and filed its own motion for summary judgment, claiming no duty to defend or indemnify Territa under the landlord insurance policy issued to Yvonne. The trial court granted summary judgment in favor of both Yvonne and Allstate.

{¶ 4} Mr. Brown now appeals from the trial court's order granting summary judgment and raises one assignment of error for this Court's review. On appeal, he only challenges the granting of summary judgment in favor of Yvonne.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT ON THE ISSUE OF HARBORER WHEN PLAINTIFF PRESENTED EVIDENCE INDICATING THAT YVONNE TERRELL CONTROLLED THE PREMISES WHERE THE DOG RESIDED AND ACQUIESCED TO THE DOG'S PRESENCE.

{¶ 5} In his sole assignment of error, Mr. Brown argues that the trial court erred in granting summary judgment in favor of Yvonne because he set forth evidence creating a genuine issue of material fact regarding whether Yvonne was a harborer of the dog and the court improperly weighed the evidence presented. We disagree.

{¶ 6} Appellate review of an award of summary judgment is de novo. Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Summary judgment is appropriate under Civ.R. 56 when: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party. Temple v. Wean United, Inc. , 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977), citing Civ.R. 56(C). A court must view the facts in the light most favorable to the nonmoving party and must resolve any doubt in favor of the nonmoving party. Murphy v. Reynoldsburg , 65 Ohio St.3d 356, 358-359, 604 N.E.2d 138 (1992). A trial court does not have the liberty to choose among reasonable inferences in the context of summary judgment, and all competing inferences and questions of credibility must be resolved in the nonmoving party's favor. Perez v. Scripps-Howard Broadcasting Co. , 35 Ohio St.3d 215, 218, 520 N.E.2d 198 (1988).

{¶ 7} The Supreme Court of Ohio has set forth the nature of this burden-shifting paradigm:

[A] party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party's claims. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party.

Dresher v. Burt , 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996).

{¶ 8} In Ohio, the two bases for recovery for injuries sustained as a result of a dog bite are common law and statutory:

[I]n a common law action for bodily injuries caused by a dog, a plaintiff must show that (1) the defendant owned or harbored the dog, (2) the dog was vicious, (3) the defendant knew of the dog's viciousness, and (4) the dog was kept in a negligent manner after the keeper knew of its viciousness.
* * *
[I]n an action for damages under R.C. 955.28, the plaintiff must prove (1) ownership or keepership [or harborship] of the dog, (2) that the dog's actions were the proximate cause of the injury, and (3) the damages. * * * [T]he defendant's knowledge of the dog's viciousness and the defendant's negligence in keeping the dog are irrelevant in a statutory action.

Beckett v. Warren , 124 Ohio St.3d 256, 2010-Ohio-4, 921 N.E.2d 624, ¶ 7-11. "An owner is the person to whom the dog belongs." Bowman v. Stott , 9th Dist. Summit No. 21568, 2003-Ohio-7182, 2003 WL 23094923, ¶ 11. "The keeper has physical charge or care of the dog." Id. "A harborer is one who 'has possession and control of the premises where the dog lives, and silently acquiesces to the dog's presence.' " Id. , quoting Khamis v. Everson , 88 Ohio App.3d 220, 226, 623 N.E.2d 683 (2d Dist.1993). " 'Acquiescence' is essential to 'harborship' and requires some intent." Id. , quoting Thompson v. Irwin , 12th Dist. Butler No. CA97-05-101, 1997 WL 666079, *4 (Oct. 27, 1997), quoting Godsey v. Franz , 6th Dist. Williams No. 91WM000008, 1992 WL 48532, *3 (Mar. 13, 1992).

{¶ 9} Mr. Brown proceeded on a statutory claim that Yvonne was a harborer of the dog that bit his son, having later conceded in his brief opposing summary judgment that she was neither the owner nor the keeper of the animal. Yvonne filed a motion for summary judgment claiming she was not a harborer of the dog because she has not lived at 758 Kipling Street since 1975, she was unaware of any pets owned by Territa, she had only seen Territa's dog once in three years, she never had any problems with the animal, Territa paid all the utilities associated with the house, and Territa never requested Yvonne's permission to have a dog at the house. Mr. Brown responded that Yvonne maintained control of the premises where the dog lived, knew of the dog's presence, and acquiesced to the dog residing at the house. He claimed that no landlord-tenant relationship existed between Yvonne and Territa. The parties both relied solely on Yvonne's deposition, which is the only deposition contained in record.

{¶ 10} The trial court found it undisputed that Yvonne did not maintain present possession of the premises, as she did not live there and no evidence was presented that she had keys to the property. The court further found that one could not reasonably infer Yvonne maintained control over the premises from the following limited evidence presented: (1) she was part owner of the property; (2) she maintained an insurance policy for the property; (3) she presumed she had the authority to evict Territa, although she has never actually evicted her; and (4) she once told Territa that she did not want a certain young man to be at the property, but never followed up to determine if Territa obeyed the instruction. Therefore, the trial court found that reasonable minds could only reach but one conclusion: "Yvonne did not maintain possession and control of the premises * * * [and] cannot be held liable as a harborer of the dog that attacked Plaintiff under R.C. 955.22 or common law."

{¶ 11} Mr. Brown now argues that the trial court erred in improperly weighing and determining the sufficiency of the "limited" evidence showing Yvonne was a harborer of the dog because the existence of any evidence is sufficient to render summary judgment inappropriate. See Horner v. City of Elyria , 9th Dist. Lorain No. 13CA010420, 2015-Ohio-47, 2015 WL 134218, ¶ 11 ("If [Appellant] produced any Civ.R. 56(C) evidence to show the existence of a genuine issue of material fact for trial, then Appellees were not entitled to summary judgment." (Emphasis sic.) ).

{¶ 12} " '[I]t is well-established that a lease transfers both possession and control of the leased premises to the tenant.' " Young v. Robson Foods , 9th Dist. Lorain No. 08CA009499, 2009-Ohio-2781, 2009 WL 1655208, ¶ 7, quoting Richeson v. Leist , 12th Dist. Warren No. CA2006-11-138, 2007-Ohio-3610, 2007 WL 2028934, ¶ 13. In the case sub judice, there is no written lease and the relationship between Yvonne and Territa regarding the property appears rather informal and is not a typical landlord-tenant relationship. The available details of their exact arrangement are scant, but Yvonne acknowledged that she co-owns the house with her brother while Territa is permitted to live in the house. Territa rarely, but sometimes, pays rent and there are no consequences for not paying rent. Nonetheless, a landlord-tenant relationship can still exist under an oral agreement, even when the tenant does not pay rent. See Morris v. Cordell , 1st Dist. Hamilton No. C-150081, 2015-Ohio-4342, 2015 WL 6166662, ¶ 14, citing Tucker v. Kanzios , 9th Dist. Lorain No. 08CA009429, 2009-Ohio-2788, 2009 WL 1655029, ¶ 21. See also R.C. 5321.01(D) (defining "rental agreement.").

{¶ 13} A landlord out of possession is generally not the harborer of a tenant's dog for the purposes of dog bite liability. Hall v. Zambrano , 9th Dist. Wayne No. 13CA0047, 2014-Ohio-2853, 2014 WL 2957493, ¶ 10. However, a landlord can and should be liable if the dog attacks someone in the common areas or in the area shared by both the landlord and the tenant. Id. Common areas are areas over which multiple people have possession and control. Engwert-Loyd v. Ramirez , 6th Dist. Lucas No. L-06-1084, 2006-Ohio-5468, 2006 WL 2988480, ¶ 11. They typically include areas such as sidewalks, parking lots, foyers, and hallways which are under the control of the lessor and which are reasonably necessary to the use and enjoyment of the leased property. Hau v. Gill , 9th Dist. Lorain No. 98CA007061, 1999 WL 492633, *5 (July 14, 1999). When the property at issue consists of a single-family residence situated on a normal-sized city lot, there is a presumption that the tenants possess and control the entire property. Young at ¶ 7. See also Good v. Murd , 6th Dist. Lucas No. L-13-1235, 2014-Ohio-2216, 2014 WL 2170302, ¶ 10 ("The yard of a single-family home is considered to be part of the tenant's property to possess and control."). A landlord is not deemed to be in possession and control of the premises simply because she retains the right to inspect them. Young at ¶ 10. Courts have further stated that "routine and common acts conducted by a landlord, such as making repairs, paying taxes, insuring the structure, and the like, do not constitute the control necessary to establish liability." Morris at ¶ 14. See also Richeson at ¶ 15 (including the power to evict and the authority to approve or disapprove structural changes as routine and common acts that do not constitute "control" for purposes of liability in tort.); Martin v. Lambert , 4th Dist. Meigs, 2014-Ohio-715, 8 N.E.3d 1024, ¶ 24. Instead, "[t]he control necessary as the basis for liability in tort implies the power and the right to admit [people to the property] and to exclude people [from it]." Prince v. Weslea , 9th Dist. Summit No. 9997, 1981 WL 4026, *1 (June 17, 1981), quoting Cooper v. Roose , 151 Ohio St. 316, 319, 85 N.E.2d 545 (1949). See also Kovacks v. Lewis , 5th Dist. Tuscarawas No. 2010 AP 01 0001, 2010-Ohio-3230, 2010 WL 2706171, ¶ 27 ("The hallmark of control is the ability to advent or to exclude others from the property.").

{¶ 14} Here, Yvonne stated that she has not lived in the house since 1975, but has allowed Territa to live there since sometime after Yvonne and her brother inherited it from their late mother. Some type of oral agreement or arrangement existed in which Territa could live in the house and pay Yvonne rent whenever possible. She stated that Territa is the only one that is supposed to live in the house, and when asked if she has the power to have Territa move out for non-payment of rent she replied, "I should, yes." A landlord's power to evict a tenant is generally regarded as a routine and common act, so Yvonne's statement that she should be able to evict Territa is not indicative of "control" for purposes of tort liability. See Richeson at ¶ 15 ; Martin at ¶ 24 ; Payne v. Ohio Performance Academy, Inc. , 10th Dist. Franklin, 2017-Ohio-8006, 98 N.E.3d 1078, ¶ 20, 29. Regarding a prior domestic incident in which a young man fired a gun in the house, Yvonne recalled not wanting the man at the house anymore: "I just told [Territa] at the time I just didn't want the young man to be there." Yvonne admittedly never checked to see if Territa subsequently allowed the man to return to the house. Yvonne's statements are only indicative of her personal desire for the man not be on the property and do not establish that she has the ability to exclude people from the property or has in fact exercised such a right. See Krause v. Spartan Stores, Inc. , 158 Ohio App.3d 304, 2004-Ohio-4365, 815 N.E.2d 696, ¶ 17 (6th Dist.) (stating "control" involves both the right and power to admit or exclude persons from the premises as well as a substantial exercise of that right and power).

{¶ 15} Regardless, no evidence was presented to demonstrate that Yvonne maintained possession and control of any common areas or shared areas outside of the house, where the dog was chained and where the attack occurred, and Mr. Brown failed to overcome the presumption that Territa had exclusive possession and control of the entire property. When asked if she had been to the property since Territa obtained the dog, Yvonne initially replied, "Let's see, I can't remember. I don't think so[,]" but then stated, "I know about it, but if it was, I was outside." Yvonne stated that she only visited the house three times in three years while "probably in the driveway," and admitted, "I think I saw that dog about one time." Thus, the evidence only established that Yvonne has not lived there for the past several decades and has only visited Territa three times in three years, likely remaining somewhere outside during these rare visits. A landlord's knowledge that a tenant is keeping a dog on the leased premises, standing alone, does not support a finding that the landlord harbored the dog, absent evidence that the landlord has retained possession and control of the leased premises. See Coontz v. Hoffman , 10th Dist. Franklin No. 13AP-367, 2014-Ohio-274, 2014 WL 309315, ¶ 24. See also Young at ¶ 11 (stating it is immaterial whether a landlord acquiesced in the dog's presence when the landlord did not have possession and control of the property).

{¶ 16} Mr. Brown urges us to consider the Fourth District Court of Appeals' decision in Hill v. Hughes , 4th Dist. Ross No. 06CA2917, 2007-Ohio-3885, 2007 WL 2189072. In Hill , the appellate court reversed the trial court's partial summary judgment in a dog bite case, concluding a genuine issue of material fact remained as to whether a father harbored a son's dog because the father acknowledged he possessed the authority or right to make his son get rid of the dog. Id. at ¶ 20. But, the Hill case has received some criticism in recent years from our sister district courts. See Schneider v. Kumpf , 2d Dist. Montgomery, 2016-Ohio-5161, 58 N.E.3d 1220, ¶ 41 (stating Hill involves a departure from most Ohio cases and further noting the dissent in Hill ); Good , 2014-Ohio-2216, at ¶ 12 ("The only court to have rendered a decision which appears contrary to the prevailing case law is Hill * * *."); Coontz at ¶ 18 ("To the extent that Hill subjects a landlord to liability for an attack by the tenants' dog that occurred upon premises within the exclusive possession of the tenant, the Hill case conflicts with the established precedent in Ohio * * *.").

{¶ 17} Mr. Brown likens the facts in Hill to the instant case and claims Yvonne clearly had the power to tell Territa to get rid of the dog and in fact asserted that power by not permitting Territa to have another dog after this incident. But, Mr. Brown misstates the evidence presented in this case and, notwithstanding its criticism as an outlier case, the facts in Hill appear to be distinguishable. Hill involved a father and son living on contiguous properties owned by the father, which raised questions in the appellate court as to whether the father had more possession and control over the property than a typical landlord. Hill at ¶ 19. The father also stated he had the authority to tell his son to get rid of the dog. Id. at ¶ 19-20. When asked if she would have given Territa permission to get a dog if Territa had asked her about it prior to actually getting one, Yvonne said, "I don't know. I doubt it * * * because we just fixed up the house." When later asked if she would have any objection to Territa getting a new dog, Yvonne replied, "Well, I don't know. I don't know[ ] because I have a dog of my own." Yvonne was also asked if she ordered Territa to get rid of the dog after he attacked and she replied, "No." When asked again later if Territa was permitted to have another dog on the property, Yvonne replied, "Within five years * * * that's my understanding." She then clarified that it must have been the courts that put that restriction on Territa. Thus, the evidence does not show, as Mr. Brown suggests, that Yvonne clearly had the right to prohibit Territa from having a dog and asserted any such right to prohibit Territa from getting a dog after this incident.

{¶ 18} This Court, in construing the evidence in a light most favorable to Mr. Brown, agrees with the trial court's conclusion that there was no genuine issue of material fact as to whether Yvonne was a harborer of Territa's dog. We disagree with Mr. Brown's contention that the trial court improperly weighed evidence that Yvonne harbored the dog, as no evidence was presented to overcome the presumption that Territa possessed and controlled the entire property and no evidence was presented to show that Yvonne possessed or controlled any common or shared areas outside where the dog was chained and where the attack occurred. We therefore conclude that the trial court did not err in granting summary judgment in this matter.

{¶ 19} Accordingly, Mr. Brown's assignment of error is overruled.

III.

{¶ 20} Mr. Brown's assignment of error is overruled. The judgment of the Summit County Court of Common Pleas is affirmed.

Judgment affirmed.

HENSAL, J.

CALLAHAN, J.

CONCUR.


author: MARY J. BOYLE, J.:

text:
    Fredrick S. ELSNER, Plaintiff-Appellant v. Curtis L. BIRCHALL, M.D., et al., Defendants-Appellees
    No. 106524
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: June 28, 2018
    Dale R. Friedland, Rapoport Spitz Friedland & Courtney, 27600 Chagrin Boulevard, Suite 340, Woodmere, Ohio 44122 Jonathan Misny, Thomas J. Misny, 7319 Eagle Mills Road, Waite Hill, Ohio 44094, ATTORNEYS FOR APPELLANT
    Holly M. Wilson, Adam J. Davis, Martin T. Galvin, Reminger Co., L.P.A., 101 West Prospect Avenue, Suite 1400, Cleveland, Ohio 44115-1093, ATTORNEYS FOR APPELLEES
    BEFORE: Boyle, J., E.A. Gallagher, A.J., and Laster Mays, J.
    JOURNAL ENTRY AND OPINION
   MARY J. BOYLE, J.:

{¶ 1} Plaintiff-appellant, Frederick S. Elsner, appeals the trial court's denial of his motion for a new trial and raises one assignment of error for our review:

The trial court erred in denying the Plaintiff's Motion for a New Trial based on juror misconduct and the manifest weight of the evidence.

{¶ 2} Finding no merit to his assignment of error, we affirm.

I. Procedural History and Factual Background

{¶ 3} In December 2014, Elsner visited Birchall and Associates, L.L.C., and underwent the Priapus procedure. Dr. Curtis L. Birchall performed the procedure, and Elsner was discharged the same day. Over the course of the next month, Elsner developed a fever and other symptoms. He eventually went to the emergency room at the Cleveland Clinic, where he was diagnosed with scrotal gangrene and underwent "an extensive scrotal debridement under general anesthesia."

{¶ 4} On March 7, 2016, Elsner filed a complaint against Dr. Birchall, Birchall and Associates, L.L.C. (d.b.a. The Fountain Clinic), and Katina Walker, setting forth claims for medical malpractice and fraud due to performance of an unauthorized medical procedure outside of the standard of care for treatment of male impotence, with misrepresentation and lack of scientific substantiation of promised results.

{¶ 5} Walker moved to dismiss the claims against her under Civ.R. 12(B)(6), which Elsner did not oppose and the court granted.

{¶ 6} The parties engaged in lengthy pretrial motion practice and discovery. The case was eventually reassigned from the original trial judge to a visiting judge based on a scheduling conflict. The case proceeded to a trial by jury. The jury returned a verdict in favor of the defendants and was polled in open court and on the record.

{¶ 7} Three days later, Elsner filed a motion for a new trial as well as two motions for judgment notwithstanding the verdict. Elsner's motion for a new trial argued that a member of the jury engaged in misconduct and that the weight of the evidence did not support the judgment. The defendants filed a brief in opposition to those motions. The trial court ordered the transcript of the voir dire portion of the trial. The original trial judge, who did not preside over the trial, denied Elsner's motions for judgment notwithstanding the verdict as well as his motion for a new trial.

{¶ 8} It is from the trial court's denial of his motion for a new trial that Elsner now appeals.

II. Law and Analysis

{¶ 9} In his sole assignment of error, Elsner argues that the trial court erred when it denied his motion for a new trial. In support of his assignment of error, Elsner argues that the court should have granted him a new trial because (1) juror No. 2 failed to disclose that she was previously represented by the same law firm representing Birchall, (2) juror No. 2 worked on word puzzles during the trial and bullied other jury members into finding for Birchall, (3) the judgment was against the manifest weight of the evidence, and (4) the judge who presided over the trial, not the original trial judge, should have ruled on his motion for a new trial.

{¶ 10} Under Civ.R. 59(A), a court may grant a new trial based on "[m]isconduct of the jury." A court may also grant a new trial within its "sound discretion * * * for good cause shown." Id. Nevertheless, "motions for new trial are not to be granted lightly." State v. Jerido , 8th Dist. Cuyahoga No. 72327, 1998 WL 83214, *2 (Feb. 26, 1998), citing Toledo v. Stuart , 11 Ohio App.3d 292, 465 N.E.2d 474 (6th Dist.1983).

{¶ 11} We review a motion for a new trial based on jury misconduct under Civ.R. 59(A)(2) for an abuse of discretion. Harris v. Mt. Sinai Med. Ctr. , 116 Ohio St.3d 139, 2007-Ohio-5587, 876 N.E.2d 1201, ¶ 36. A trial court's denial of a motion for a new trial does not constitute an abuse of discretion if competent, credible evidence supports the verdict. Smith v. Sass, Friedman & Assocs. , 8th Dist. Cuyahoga No. 81953, 2004-Ohio-494, 2004 WL 229515, ¶ 37.

{¶ 12} Analyzing allegations of juror misconduct requires a two-step inquiry. First, a trial court "must determine whether misconduct actually occurred." Jerido at *2. If the trial court finds misconduct, then it must determine "if the misconduct materially affected the [complaining party's] substantial rights." Id. ; see also Pittock v. Kaiser Found. Health Plan , 8th Dist. Cuyahoga No. 72628, 1998 WL 241959 *6 (May 14, 1998) ("[A] judgment will not be reversed because of alleged juror misconduct unless prejudice to the complaining party is shown.").

A. Failure to Disclose

{¶ 13} In support of his assignment of error, Elsner first argues that juror No. 2 engaged in misconduct when she failed to disclose that she was previously represented by the Reminger law firm in a medical malpractice case after Birchall's counsel revealed that he worked for Reminger. In his brief, he cites to Burton v. Unifirst Corp. , 8th Dist. Cuyahoga, 2013-Ohio-2330, 993 N.E.2d 440, and State v. Mack , 8th Dist. Cuyahoga No. 93091, 2010-Ohio-1420, 2010 WL 1254264.

{¶ 14} In Burton , we reversed the trial court's denial of the plaintiff's motion for a new trial, which alleged juror misconduct. The record showed that one of the jurors, who was a medical doctor, failed to "reveal that he had been previously sued several times, which could have caused him to be biased in favor of the defendant." Id. at ¶ 9. We found that the juror "did not merely fail to disclose the fact that he was sued in the past, he affirmatively made a misrepresentation by boasting that 'I'm proud to say in 33 years of practice I've never been sued for malpractice.' " Id. at ¶ 11. As a result, we found that it was "not a case where the juror merely forgot to disclose a material fact[, but was] a case where a juror answered a voir dire question dishonestly." Id.

{¶ 15} In Mack , the defendant moved for a new trial after a jury convicted him of rape and kidnapping. Immediately after the jury read its verdict, the court held a hearing concerning alleged juror misconduct, specifically concerning a conversation that a jury member had with the defendant's wife about the defendant's character and her belief that her husband was innocent. The trial court questioned both the juror and the defendant's wife, but ultimately denied the defendant's motion, finding that while the juror engaged in misconduct, that misconduct was harmless and not prejudicial to the defendant. On appeal, we reversed the trial court's ruling because it deprived the defendant of "an opportunity to meet his burden of establishing prejudice due to Juror Number 12's misconduct[.]" Id. at ¶ 14. We stated that the trial court, after finding that the jury member engaged in misconduct, "should have then allowed [the defendant] to present evidence of prejudice[,]" including the opportunity to question the defendant's wife and members of the jury. Id. at ¶¶ 33 and 35.

{¶ 16} In this case, during voir dire, the court introduced both parties, Birchall and Elsner, as well as the parties' attorneys, and asked the jurors if they knew or recognized any of them. None of the jurors indicated that they did. During those introductions, the court did not identify the law firms where the attorneys worked.

{¶ 17} Later, the court asked whether any of the jurors had been involved in a medical malpractice case, to which juror No. 2 indicated she had. Juror No. 2, who was an adult nurse practitioner at the Cleveland V.A. Medical Center, explained, "I have been deposed numerous times in cases as part of hospital staff. I was not named in them. I was named along with the physician in private practice. It was a malpractice suit for a patient in a nursing home. The family brought suit. We were dismissed from the case." Despite this, juror No. 2 informed the trial court that she could be fair and impartial to both sides. Although not precluded from doing so, neither Elsner's nor Birchall's counsel further questioned juror No. 2 as to those lawsuits.

{¶ 18} During trial, Birchall's counsel, who was from the Reminger law firm, called Dr. Keith Armitage to the stand and asked the doctor if he had reviewed cases for Reminger in the past. The doctor responded that he had and explained that "Reminger is a big firm with lots of offices over Ohio" and that during his 22 years of practicing medicine, he was "sure" that he reviewed some of Reminger's cases. Elsner did not object or move for a mistrial at that time.

{¶ 19} After review, we find that both of Elsner's cases are distinguishable from the instant case. Unlike Burton , there is no proof in the record that juror No. 2 answered any of the voir dire questions asked by the trial court or by counsel dishonestly. Burton , 8th Dist. Cuyahoga, 2013-Ohio-2330, 993 N.E.2d 440. Unlike Mack , the information that was potentially prejudicial to Elsner's case could have properly been examined during voir dire. Mack , 8th Dist. Cuyahoga No. 93091, 2010-Ohio-1420.

{¶ 20} Further, "the overriding purpose of voir dire is to question prospective jurors and determine whether a potential juror meets both the statutory qualification of a juror and is 'free from bias or prejudice for or against either litigant.' " State v. Barker , 6th Dist. Wood, 2016-Ohio-8006, 75 N.E.3d 738, ¶ 37, quoting Vega v. Evans , 128 Ohio St. 535, 191 N.E. 757 (1934). " '[C]ounsel is in the best position to determine whether any potential juror should be questioned and to what extent.' " State v. Hanna , 95 Ohio St.3d 285, 2002-Ohio-2221, 767 N.E.2d 678, ¶ 111, quoting State v. Murphy , 91 Ohio St.3d 516, 747 N.E.2d 765 (2001). "Voir dire is largely a matter of strategy and tactics." State v. Lindsey , 87 Ohio St.3d 479, 489, 721 N.E.2d 995 (2000).

{¶ 21} Here, as noted by the trial court, Elsner's "counsel had ample opportunity to question Juror No. 2 as well as other jurors [and] was able to explore anything he felt might be relevant or detrimental to his case. Counsel failed to question Juror No. 2 as to her prior counsel during the lawsuit which she referenced." Elsner's counsel did not ask juror No. 2 the name of the law firm or of the individual attorneys that represented her and did not challenge juror No. 2 after voir dire.

{¶ 22} Elsner also has not shown that the court would have granted the for-cause challenge and, therefore, has not shown prejudice. Counsel's prior representation of a prospective juror does not always constitute grounds for a for-cause challenge. See Mullett v. Wheeling & Lake Erie Ry. Co. , 8th Dist. Cuyahoga No. 81688, 2003-Ohio-3347, 2003 WL 21469150, ¶ 41 ("We cannot find that the court abused its discretion in denying the motion for a new trial solely because an attorney failed to recall that five years earlier he had litigated a case in which the railway's law firm acted as counsel for one of at least two codefendants."); State v. Schwable , 6th Dist. Ottawa No. 90-OT-042, 1992 WL 89627, *5 (May 1, 1992) ("[I]t is clear that the prosecution's representation of Diefenthaler had concluded and that at the time of this trial she did not consider the prosecutor to be her attorney. [As a result,] we cannot find that the trial court abused its discretion by failing to discharge juror Diefenthaler for cause."); State v. Hollis , 3d Dist. Wyandot No. 16-86-16, 1989 WL 43022, *2 (Apr. 18, 1989) (affirming the trial court's finding that "the fact that the prosecuting attorney had represented the two prospective jurors in previous legal matters was not of a character which would justify sustaining a challenge on suspicion of prejudice against, or partiality for, the defendant."); Beitzel v. Mizer , 5th Dist. Tuscarawas No. 1378, 1980 WL 354004, *1 (Dec. 3, 1980) ("[T]he fact that a lawyer in the case represents a venireman in an unrelated matter is not, per se, grounds for cause.").

{¶ 23} Here, Birchall's counsel, while from the same law firm as the one that previously represented juror No. 2 in a medical malpractice case, were not the attorneys who represented juror No. 2. Further, during voir dire, juror No. 2 stated that she was eventually dismissed from a malpractice suit brought against her and, besides that, only took part in depositions in cases against the hospital's staff. Based on those limited dealings and without further evidence of bias or prejudice, we find that Elsner has failed to show how juror No. 2's service on the jury prejudiced him.

{¶ 24} In sum, after review of the record, we find that the trial court did not abuse its discretion when it concluded that no misconduct or prejudice occurred as to juror No. 2's previous representation by the Reminger law firm.

B. Word Puzzles and Bullying

{¶ 25} Also as part of his assignment of error, Elsner argues that the trial court erred in denying his motion for a new trial based on juror misconduct because juror No. 2 worked on word puzzles "hidden in her juror notebook during the presentation of trial testimony" and bullied the other jurors.

{¶ 26} When allegations of juror misconduct arise after the verdict, courts look to Evid.R. 606(B), which governs the type of evidence that may be considered when analyzing a verdict's validity. The rule states in pertinent part:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment concerning his mental processes therewith. * * * His affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying will not be received for these purposes.

"This evidentiary rule embodies [an] aliunde rule which requires the introduction of evidence from a competent source other than a juror to impeach a jury verdict." Cleveland Hts. v. Reed , 8th Dist. Cuyahoga No. 67714, 1995 WL 601126, *4 (Oct. 12, 1995), citing State v. Lewis , 70 Ohio App.3d 624, 591 N.E.2d 854 (4th Dist.1990). The aliunde rule states that "affidavits of jurors will not be received to impeach their own verdict unless foundation for their introduction is first laid by competent evidence aliunde , i.e. , by evidence from some other source." Lund v. Kline , 133 Ohio St. 317, 319, 13 N.E.2d 575 (1938).

{¶ 27} In Reed , this court affirmed the trial court's denial of the defendant's motion for a new trial. We noted that "[t]he record * * * only contains the affidavit of one juror, made after the jury had been discharged, that she had changed her mind." Id. at *4. Besides one jury member's testimony that she was pressured into finding the defendant guilty, "[n]o independent proof of the alleged misconduct was made available to the trial court[.]" Id. As a result, we found that the trial court did not abuse its discretion in denying the defendant's motion for a new trial. Id. at *4.

{¶ 28} We reach a similar conclusion in this case. Here, Elsner supports his argument with affidavits from two jurors. The first is from a member of the jury who alleged that juror No. 2 pressured other jury members to find that Birchall was not liable, ignored the court's instructions concerning pertinent legal definitions, explained that she was previously represented by the Reminger law firm and complimented their legal services, discussed information concerning medical procedures that was not presented at trial, and played word puzzles during trial. The second affidavit is from Shaun Crum, who "was responsible for displaying all of exhibits for the Plaintiff[.]" According to his affidavit, Crum observed juror No. 2 taking extensive notes and told Elsner's attorney that "she might become the foreperson."

{¶ 29} Like Reed , Elsner has not provided "independent proof of the alleged misconduct." The first affidavit is from a member of the jury, which is not a competent source upon which to impeach a verdict according to the aliunde rule. While it is not clear, it appears that Elsner offered the second affidavit to constitute independent proof of misconduct; however, that affidavit states nothing more than an observation that juror No. 2 took extensive notes, which is permitted. Therefore, after review, we find that the trial court did not abuse its discretion in denying Elsner's motion for a new trial based on the attached affidavits alleging misconduct on the part of juror No. 2.

C. Manifest Weight of the Evidence

{¶ 30} Elsner also argues that the trial court erred in denying his motion for a new trial based on the manifest weight of the evidence. Elsner finds error with the trial court's failure to address his motion for a new trial based on the manifest weight of the evidence and blames the trial judge for failing to order and review the trial transcript.

{¶ 31} A party's failure to provide a transcript to the trial court defeats that party's motion for a new trial and argument that the verdict was against the manifest weight of the evidence. See Thornton v. Conrad , 194 Ohio App.3d 34, 2011-Ohio-3590, 954 N.E.2d 666, ¶ 20 (8th Dist.) (holding that the trial court erred in granting the plaintiff's motion because the plaintiff "did not supply the trial transcript to the judge, [and therefore,] there was no evidence to support his motion[.]"). Here, Elsner failed to provide the trial court with a transcript of the proceedings to support his manifest weight argument.

{¶ 32} On appeal, Elsner also failed to provide this court with a transcript of the proceedings. Under App.R. 9(B)"it is the obligation of the appellant to ensure that the proceedings the appellant considers necessary for inclusion in the record * * * are transcribed" and to "order the transcript in writing and [ ] file a copy of the transcript order with the clerk of the trial court." Additionally, App.R. 16(A)(7) requires an appellant to include "citations to the authorities, statutes, and part of the record" supporting the arguments in his appellate brief. " 'When portions of the transcript necessary for resolution of assigned errors are omitted from the record, the reviewing court has nothing to pass upon and thus, as to the assigned errors, the court has no choice but to presume the validity of the lower court's proceedings, and affirm.' " Carter v. Meyer , 8th Dist. Cuyahoga No. 93457, 2010-Ohio-1868, 2010 WL 1713425, ¶ 11, quoting Knapp v. Edwards Laboratories , 61 Ohio St.2d 197, 400 N.E.2d 384 (1980) ; see also Ali v. Vargo , 8th Dist. Cuyahoga No. 85244, 2005-Ohio-3156, 2005 WL 1490124, ¶ 22 (finding that the appellant failed in his duty to provide the reviewing court with a transcript to demonstrate his assignments of error).

{¶ 33} Here, Elsner failed to provide this court with a copy of the transcript of the entire proceedings and failed to identify the parts of the transcript that the trial court did not review that were relevant to its decision. See State v. Spurlock , 2d Dist. Montgomery No. 17954, 2000 WL 1433936, *5 ("Motions for new trial must be supported by evidence which portrays operative facts demonstrating the grounds for relief alleged. If that evidence, in the form of affidavits, depositions, or transcripts, fails to portray such operative facts, no further hearing to determine their existence is required."). The only portions of the transcript that were made available to this court were that of the voir dire and of the defendants' direct examination of Dr. Armitage.

{¶ 34} As a result, we find that it was not the trial court's duty to order the remainder of the transcript, and we reject Elsner's manifest weight argument based on his failure to provide the trial court and this court with a transcript of the proceedings.

D. The Original Trial Judge's Ruling

{¶ 35} Finally, Elsner argues that it was error for the original trial judge to rule on his motion for a new trial because she had previously ordered that the visiting judge would rule on post-trial motions, the original trial judge was not present for the trial, and "[t]he visiting judge was in a much better position" to rule on his motion for a new trial.

{¶ 36} Contrary to Elsner's argument, "[i]t is well-established that a successor judge may rule on a motion for a new trial when a different judge presided at trial [as long as] the successor judge [has] the proper evidence before him to decide the motion." Thornton, 194 Ohio App.3d 34, 2011-Ohio-3590, 954 N.E.2d 666, at ¶ 14, citing Potocnik v. Sifco Indus. , 103 Ohio App.3d 560, 567, 660 N.E.2d 510 (8th Dist.1995). Here, the original trial judge did not preside over the trial and did not review the trial transcript before ruling on Elsner's motion for a new trial because Elsner did not provide it. Nevertheless, the original trial judge properly denied the motion because, as stated above, the original trial judge reviewed the transcript of voir dire, which showed that Elsner's counsel failed to fully examine juror No. 2 and because Elsner failed to provide the remainder of the transcript.

{¶ 37} Judgment affirmed.

EILEEN A. GALLAGHER, A.J., and ANITA LASTER MAYS, J., CONCUR

      According to a brochure titled "Male Enhancement: Patient Information About the Priapus Shot" and attached to Elsner's complaint as an exhibit, the Priapus shot is an injection of a patient's platelet-rich plasma into the patient's corpus cavernosa, which is a structure in the penis that causes an erection. The brochure states that the shot "enhances blood flow to the corpus cavernosa," resulting in "a firmer, harder erection."