author: SADLER, J. HORTON, J., dissenting.

text:
    Daniel R. SHEPHERD, Plaintiff-Appellant, v. Cynthia M. SHEPHERD, Defendant-Appellee.
    No. 17AP-436
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on March 20, 2018
    On brief: The Tyack Law Firm Co., LPA, and Thomas M. Tyack, Columbus, for appellant. Argued: Thomas M. Tyack.
    DECISION
   SADLER, J.

{¶ 1} Plaintiff-appellant, Daniel R. Shepherd, appeals from a judgment entry of the Franklin County Court of Common Pleas, Division of Domestic Relations, denying appellant's motion for new trial. For the following reasons, we affirm the decision of the trial court.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} Appellant and appellee were married on November 27, 1981. On May 13, 2016, appellant filed a complaint of divorce in the Franklin County Court of Common Pleas, Division of Domestic Relations. On May 24, 2016, appellee filed an answer and counterclaim for divorce, as well as a motion and affidavit for temporary orders.

{¶ 3} On July 22, 2016, a magistrate's order designated appellee as the temporary residential parent and legal custodian of the two minor children, allocated appellant parenting time, set a temporary payment amount for appellant to pay appellee, and indicated that child and spousal support and arrearage, fees, and expenses will be addressed "at final." (July 22, 2016 Mag.'s Order at 1.) After several continuances, the record shows that a hearing on temporary orders and "possible settlement" was scheduled for August 30, 2016. (July 19, 2016 Mot. for Continuance at 1.) An "agreed entry" signed by both parties and filed that same day states:

The parties shall immediately list the marital residence for sale. [Appellee]
shall contact an agent to inspect [and] list the house. Both parties shall have access to speak with the agent. The parties shall defer to the agent as to listing price and acceptance of any offer. No offer within 3% of the listing price shall be refused. Any liability or profit shall be equally divided by the parties at closing. The parties shall equally divide all realtor fees, closing costs, etc.
[Appellant] shall lay new carpeting on the stairs and pick up his tools at the same time. This shall be done within 17 days of this entry.

(Aug. 30, 2016 Agreed Entry at 1.)

October 26, 2016 Divorce Settlement Memorandum

{¶ 4} A hearing on settlement was ultimately held on October 26 and 27, 2016. On October 26th, the parties and their respective counsel appeared before the trial court judge; the record does not establish where the hearing occurred. The parties indicated settlement negotiations were almost complete and asked for "guidance from the Court" on one issue that remained to be settled. (Oct. 26, 2016 Hearing Tr. at 2.) The trial court did not make findings of fact on that issue.

{¶ 5} Both parties, their attorneys, and the judge signed a Divorce Settlement Memorandum ("settlement memorandum") dated October 27, 2016. In the settlement memorandum, the parties agreed to divorce on the ground of incompatibility, that appellee would have residential and legal custody of the minor children, and that the parties would adhere to a certain parenting time schedule with mandatory counseling between the children and appellant. Appellant agreed to pay a specific amount of child support, provide private health insurance for the benefit of the children, and split the cost of the children's extra medical and health expenses and extra-curricular activities.

{¶ 6} The settlement memorandum further indicated that appellant is obligated to pay appellee $867 in total spousal support per month with termination on "death of either party." (Divorce Settlement Memo. at 3.) The box approving continuing jurisdiction over spousal support is checked "yes" with an asterisk corresponding to a note that "shall be a lifetime award, subject to modification on amount, not duration." (Divorce Settlement Memo. at 3.)

{¶ 7} Under property division allocation, the settlement memorandum states:

Parties to list residence for sale immediately "as is". Parties shall defer to recommendation of agent for both listing [and] selling prices. Parties to equally share in equity at closing. No offer [within] 3% of asking price shall be refused. [Appellant] shall install carpeting in marital residence [and] pick up his tools, both [within] 14 days of today.

(Emphasis sic.) (Divorce Settlement Memo. at 3.) The parties agreed to divide all household goods and furniture equally within 30 days, with counsel exchanging a list of what appellant requests and working with the parties to facilitate the division. Each party retained their own bank account, appellee maintained her OPERS and social security and 50 percent of the marital portion of appellant's Ohio Public Employees Retirement System ("OPERS") account, offset by appellee's social security as to be determined by a third-party pension evaluator paid by appellant. Appellee received 50 percent, at least $9,500, from appellant's deferred compensation, while appellant retained all other funds. The box indicating "parties agree property division is equitable and waive their rights to written findings of fact" is checked. (Divorce Settlement Memo. at 4.)

{¶ 8} The settlement memorandum further indicates that each party keeps debts in their own name and pays half the cost of the residence mortgage until it is sold. The parties agreed to begin to file taxes separately beginning in 2016, and appellant "shall take [one of the children] as an income tax deduction every year so long as he is substantially current on his child support obligation." (Divorce Settlement Memo. at 5.)

{¶ 9} Under a section of the settlement memorandum entitled "preservation and nonmerger of the following temporary orders," two documents are indicated: the August 30, 2016 agreed entry and the July 22, 2016 magistrate's order. (Divorce Settlement Memo. at 5.) Furthermore, the settlement memorandum indicates that appellee's attorney would prepare the final decree within 30 days, and next to the question "[d]o parties waive signatures on the final Decree," the box for "yes" is checked. (Divorce Settlement Memo. at 5.) Both parties, their attorneys, and the judge signed the settlement memorandum.

{¶ 10} The following day, October 27, 2016, the parties and their counsel appeared before the judge in a courtroom. Appellant and appellee were sworn in as witnesses. After first testifying that he had been "badgered" about signing the settlement memorandum, appellant confirmed for the court that he had signed the settlement memorandum and wished it to be incorporated as part of the final decree and further waived findings of fact from the court as far as assets. (Oct. 27, 2016 Hearing Tr. at 5-6.) Appellee likewise testified as to signing the settlement memorandum and wishing it to be incorporated into the final decree. The trial court then granted the parties a divorce based on the divorce settlement memorandum and the parties' testimonies and indicated that the terms of the settlement memorandum would become the final orders on submission of a typewritten decree.

February 6, 2017 Agreed Judgment Entry-Decree of Divorce

{¶ 11} On January 18, 2017, appellant's counsel moved to withdraw as counsel. The trial court granted counsel permission to withdraw on January 23, 2017. On February 6, 2017, the trial court filed an Agreed Judgment Entry-Decree of Divorce ("divorce decree") granting the parties a divorce and finding "the parties have reached an agreement as to all pending matters; that said agreement is fair, just, and that, by reason thereon, it is to be made an Order of the Court." (Agreed Judgment Entry-Decree of Divorce at 2.)

{¶ 12} In part pertinent to this appeal, the divorce decree states:

C. Income Tax Deduction-
For so long as [appellant] is substantially current (not more than 2 months behind) on his child support obligation, [appellant] shall have the right to claim [oldest minor child] as a dependent for all federal, state and local income tax[es] * * *.
If [appellant] is not substantially current (not more than 2 months behind) on his child support obligation at the end of any tax year, the [appellee] shall be entitled to the right to also claim [oldest minor child] as a dependent for all federal, state and local income tax purposes that tax year.
* * *
2. Spousal Support
Beginning October 26, 2016, [appellant] shall pay to [appellee] as and for spousal support, the sum of * * * per month, plus processing, for a total of * * * per month. [Appellant's] spousal support obligation shall continue for life and shall terminate upon the death of [appellant] or the death of [appellee].
* * *
The Court shall retain jurisdiction over the amount of the spousal support order and shall not retain jurisdiction over the duration of the spousal support order.
3. Waiver of Valuation
Notwithstanding that the parties have been advised of their right to have each item of property valued for the purpose of equal distribution, each of them hereby accordingly, voluntarily, and expressly waives such valuation and written findings of fact pursuant to Ohio Revised Code § 3105.171(B) and (G) and agrees that the distribution of their real and personal property, as well as the allocation of all debts, liabilities and other obligations, while not precisely equal is in fact equitable and in accordance with their intentions and to the mutual satisfaction of each of them. The parties further knowingly and voluntarily waive a determination as to whether said property, or any part thereof, is separate or marital property as said terms are defined in Ohio Revised Code § 3105.171(A).
4. Division & Allocation of Marital Property
All property, real and personal, and wherever situated, which the parties own separately, or jointly, or in common with each other, or in which either party has any interest or control, shall be divided as follows :
A. Real Estate-
* * *
Prior to listing the house for sale, [appellant] shall install carpeting in the marital residence and pick up his tools, both no later than November 10, 2016. Immediately thereafter, the parties shall list the property for sale with a Realtor. The parties shall consult with and rely upon the Realtor for the initial listing and selling price and shall defer to any recommendations of the Realtor for price adjustments and the parties shall certainly not reject any offer that is within 3% of the listing price.
Pursuant to the parties' August 30, 2016 Agreed Entry, which has been merged into this Decree, upon the sale and closing of the Marital Residence, any liability or equity shall be equally divided by the parties. The parties shall equally divide all realtor fees, closing costs, etc.
* * *
5. Advice of Counsel
Both parties acknowledge that they had the right and opportunity to seek advice of legal counsel of their own selection free from any interference from the other and that both parties have freely, knowingly and intelligently signed this document and agree to its terms and conditions.
* * *
9. Preservation of Temporary Orders
The parties hereby merge the August 30, 2016 and July 22, 2016 Magistrate Orders into this final Decree and maintain their terms as fully enforceable, unless otherwise modified herein.
* * *
11. Effective Date
This Decree shall be effective as of October 26, 2016. The parties waived signatures on this final Decree by way of the Divorce Settlement Memorandum prepared on October 26, 2016 as well as the testimony submitted to the Court on October 27, 2016.

(Emphasis sic.) (Agreed Jgmt. Entry-Decree of Divorce at 5, 11-13, 16-18.) The divorce decree indicates "Signature waived on MOA" on the signature lines for both appellant and appellee. (Agreed Jgmt. Entry-Decree of Divorce at 18.) Appellee's attorney signed separately, and appellant's signature block indicates a pro se status.

{¶ 13} New counsel for appellant filed a notice of appearance on February 7, 2017.

On March 2, 2017, appellant filed a motion for new trial, pursuant to Civ.R. 59(A)(1), (3), (6), (7), and (9), and in the sound discretion of the court for good cause shown. In his motion for new trial, appellant contended:

A series of matters have taken place in the processing of this case mandating that the Judgment Entry be vacated and the matter be remanded and undertaken for additional consideration and proceedings, including taking evidence with regard to the circumstances, mandating that this judgment be set aside and permitting additional evidence to be taken as provided in the last paragraph of Rule 59 since the "judgment" is not the product of a jury trial.

(Mar. 2, 2017 Mot. for New Trial at 2.)

{¶ 14} The trial court denied appellant's motion on May 26, 2017. In doing so, the trial court found that no "trial" had occurred in the case for purposes of Civ.R. 59 since the parties entered into a settlement memorandum, no evidence was submitted to the court, no arguments or testimony was given as to assets, liability, or parental rights, and the court did not make findings of fact or issue a decision based on evidence. (May 26, 2017 Decision at 3.) The trial court additionally found no reason to grant a new trial in its discretion and found no irregularity of the proceedings or any other grounds that would lead the court to believe the divorce decree should be vacated. (May 26, 2017 Decision at 3.) However, the trial court did find that the third full paragraph of section 4.A. of the divorce decree, regarding appellant's obligation to install carpeting in the martial residence and the parties agreement to list the property for sale and rely on a realtor, misstated the parties' agreement and ordered that paragraph replaced with the exact language provided in the settlement memorandum.

{¶ 15} Appellant filed a timely appeal to this court.

II. ASSIGNMENT OF ERROR

{¶ 16} Appellant presents one assignment of error:

THE TRIAL COURT ERRED IN OVERRULING THE MOTION FOR A NEW TRIAL GIVEN THE DISPARITY BETWEEN THE MEMORANDUM OF AGREEMENT AND THE AUGUST 30TH COURT ORDER AND THE JUDGMENT ENTRY PREPARED BUT NOT SUBMIT[T]ED TO THE PLAINTIFF OR TO HIS FORMER COUNSEL BEFORE BEING SUBMITTED TO THE TRIAL COURT WHICH THE COURT THEN SIGNED.

III. DISCUSSION

{¶ 17} Under his sole assignment of error, appellant contends the trial court erred in denying the Civ.R. 59(A) motion for new trial considering what he alleges to be inconsistencies between what appellant understood to be the terms of the settlement memorandum and the divorce decree and considering the divorce decree was allegedly not submitted to appellant or counsel prior to being submitted to the court. For the following reasons, we disagree.

{¶ 18} Civ.R. 59(A) states, in pertinent part, "[a] new trial may be granted to all or any of the parties and on all or part of the issues upon any of the following grounds:"

(1) Irregularity in the proceedings of the court * * * or prevailing party, or any order of the court * * *, or abuse of discretion, by which an aggrieved party was prevented from having a fair trial;
* * *
(3) Accident or surprise which ordinary prudence could not have guarded against;
* * *
(6) The judgment is not sustained by the weight of the evidence; however, only one new trial may be granted on the weight of the evidence in the same case;
(7) The judgment is contrary to law;
* * *
(9) Error of law occurring at the trial and brought to the attention of the trial court by the party making the application.
In addition to the above grounds, a new trial may also be granted in the sound discretion of the court for good cause shown.
* * *
On a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and enter a new judgment.

{¶ 19} "As a general matter, Civ.R. 59 does not require the trial court to grant a new trial, but allows the court discretion to decide whether a new trial is appropriate." Wolf-Sabatino v. Sabatino , 10th Dist. No. 12AP-307, 2012-Ohio-6232, 2012 WL 6738535, ¶ 12, citing Alderman v. Alderman , 10th Dist. No. 10AP-1037, 2011-Ohio-3928, 2011 WL 3452008, ¶ 11. "An appellate court will not reverse a decision whether to grant a new trial absent an abuse of discretion." Wolf-Sabatino at ¶ 12, citing Thomas v. Columbia Sussex Corp. , 10th Dist. No. 10AP-93, 2011-Ohio-17, 2011 WL 96277, ¶ 16. However, issues of law are reviewed de novo. Tipton v. Goodnight , 4th Dist. No. 05CA7, 2006-Ohio-113, 2006 WL 73458, ¶ 7.

{¶ 20} A threshold question in determining whether a new trial, pursuant to Civ.R. 59, is warranted is whether the trial court had in fact conducted a "trial." Wolf-Sabatino at ¶ 13 (considering as an initial matter whether a trial was conducted since "a motion for a new trial properly lies only after a trial"); Fougere v. Estate of Fougere , 10th Dist. No. 17AP-72, 2017-Ohio-7905, 2017 WL 4317438, ¶ 14 ("A motion for a new trial is a nullity unless it is filed after a trial has occurred.").

{¶ 21} The Supreme Court of Ohio addressed the meaning of "trial" for purposes of Civ.R. 59 in First Bank of Marietta v. Mascrete, Inc. , 79 Ohio St.3d 503, 684 N.E.2d 38 (1997). In pertinent part, the Mascrete court states:

[T]he proper test for determination of whether a proceeding is a trial, subject to a Civ.R. 59 motion for a new trial, is an inquiry that focuses on the substance of the proceeding rather than on its form. A proceeding is considered a trial for purposes of Civ.R. 59 when the indicia of trial substantially predominate in the proceeding. In deciding whether a proceeding rises to the level of a trial for Civ.R. 59 purposes, courts should consider the nature of the individual proceeding.
A list of relevant indicia may include (1) whether the proceeding was initiated by pleadings, (2) whether it took place in court, (3) whether it was held in the presence of a judge or magistrate, (4) whether the parties or their counsel were present, (5) whether evidence was introduced, (6) whether arguments were presented in court by counsel, (7) whether issues of fact were decided by the judge or magistrate, (8) whether the issues decided were central or ancillary to the primary dispute between the parties, (9) whether a judgment was rendered on the evidence. The list of factors is not intended to be exhaustive. Other indicia may be considered. The focus of the inquiry, however, is whether there is a substantial predominance of indicia of trial such that the proceeding is properly characterized as a trial for Civ.R. 59 purposes.

Id. at 507, 684 N.E.2d 38.

{¶ 22} Under the Mascrete analysis, a judgment entry and divorce decree that is the result of a settlement agreement reached between the parties does not generally constitute a trial for purposes of Civ.R. 59. Byrd v. Mickens-Byrd , 10th Dist. No. 01AP-946, 2002-Ohio-2579, 2002 WL 1290867, ¶ 27-30 (finding no error in the trial court's application of the Mascrete factors and conclusion that no trial occurred where the trial court incorporated the parties' agreement into the divorce decree); Diguilio v. Diguilio , 8th Dist. No. 81860, 2003-Ohio-2197, 2003 WL 1995607, ¶ 36-41 (noting the appellant was attempting to obtain an additional trial to revisit issues that were resolved in the settlement agreement reached by the parties and by improperly referencing alleged conversations outside the record). Proceedings in which the court inquires into the parties' assent to the terms and overall fairness of an out-of-court settlement reached by the parties do not rise to the level of a "trial" for purposes of Civ.R. 59. Id. at ¶ 39.

{¶ 23} Here, appellant argues the divorce decree varies from the terms of the settlement memorandum. As variances, appellant points to language in the divorce decree that (1) the only basis for termination of spousal support is the death of either party, (2) if appellant was specifically two months behind on his child support for the tax year he could not claim a child as a tax exemption, (3) appellant shall install carpeting in the marital residence (rather than indicating just installing carpet on the stairs in accordance with the August 30th memorandum), (4) "in essence awards all of the household goods and furnishings * * * to [appellee]" rather than a 50-50 split as agreed to in the settlement memorandum, and (5) inserted an additional phrase that the parties waive determination as to whether the certain property is separate or marital property. (Appellant's Am. Brief at 6.) Appellant additionally asserts the divorce decree was not seen or reviewed by appellant or his counsel prior to the trial court signing it.

{¶ 24} Appellant emphasizes the trial court, in overruling the motion for new trial, did not rule on or discuss the variations between the settlement memorandum and the divorce decree "that it signed without it being seen or reviewed by either [appellant] or his counsel." (Appellant's Am. Brief at 11.) Appellant thus argues the motion for new trial was filed in part "to give the court an opportunity to change the [divorce] decree" to correct the variances under the last paragraph of Civ.R. 59, which permits a trial court to open the judgment in an action tried without a jury to take additional testimony, amend or make new findings of fact and conclusions of law, and enter a new judgment. (Appellant's Am. Brief at 12.)

{¶ 25} Appellant's assignment of error and supporting arguments essentially contest the merits of a new trial without first establishing that a trial had occurred to invoke Civ.R. 59 as the proper mechanism to resolve these alleged errors. As provided above, cases involving divorce decrees formed from settlement agreements generally do not involve a "trial" under the analysis established by Mascrete . Aside from citing to the basic rule of Mascrete , appellant provides no argument or legal authority for why, despite the settlement agreement, a proceeding has occurred in this case with indicia of a trial that substantially predominate per Mascrete . As such, appellant has not met his burden to affirmatively demonstrate error on appeal.

Watkins v. Holderman , 10th Dist. No. 11AP-491, 2012-Ohio-1707, 2012 WL 1344017, ¶ 11 ; see also App.R. 16(A) ; State v. Smith , 9th Dist., 2017-Ohio-359, 83 N.E.3d 302, ¶ 22, quoting Cardone v. Cardone , 9th Dist. No. 18349, 1998 WL 224934 (May 6, 1998) (" 'If an argument exists that can support this assignment of error, it is not this court's duty to root it out.' "); Abraham v. BP Exploration & Oil, Inc. , 149 Ohio App.3d 471, 2002-Ohio-4392, 778 N.E.2d 48, ¶ 32 (10th Dist.) ("It is not the duty of this court to search the record for evidence to support an appellant's argument as to alleged error.").

{¶ 26} To the extent appellant argues the trial court should have granted a new trial in its discretion anyway, pursuant to the last paragraph of Civ.R. 59(A), this argument is both unsupported in law and on this record. The last paragraph of Civ.R. 59(A) reads "[o]n a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and enter a new judgment." Appellant has not provided authority showing this paragraph is immune from the threshold requirement that the trial court conducted an initial "trial" in order for a new trial under Civ.R. 59(A) to be proper. Wolf-Sabatino at ¶ 13 ; Fougere at ¶ 14. Regardless, even had an initial trial occurred, after reviewing the settlement memorandum and the decree of divorce, we disagree with appellant that the variances as alleged by appellant warrant a new trial. Appellant has not established that the trial court abused its discretion in declining to order a new trial on this record as an alternative basis to deny appellant's motion. Therefore, considering all the above, appellant's assignment of error lacks merit.

{¶ 27} Accordingly, appellant's sole assignment of error is overruled.

IV. CONCLUSION

{¶ 28} Having overruled appellant's sole assignment of error, we affirm the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations.

Judgment affirmed.

LUPER SCHUSTER, J., concurs.

HORTON, J., dissents.

HORTON, J., dissenting.

{¶ 29} I respectfully dissent. I believe the trial court committed plain error to the prejudice of appellant when it adopted the February 6, 2017 Agreed Judgment Entry-Decree of Divorce which contained several inconsistencies to the parties' Divorce Settlement Memorandum entered on October 26, 2016. The trial court's attempt to correct one of a few errors contained in the Decree by its May 26, 2017 Entry was insufficient. Appellant, nor his counsel, signed the "agreed" entry. In light of the multiple errors and issues involved with this case, I would reverse the matter for further proceedings.


source: Caselaw Access Project

author: Wise, Earle, J.

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee v. James MARCUM, Defendant-Appellant
    No. 17-CA-35
    Court of Appeals of Ohio, Fifth District, Fairfield County.
    DATE OF JUDGMENT: March 21, 2018
    JOEL C. WALKER, Assistant Prosecuting Attorney, 239 West Main Street, Suite 101, Lancaster, OH 43130, For Plaintiff-Appellee.
    ANDREW T. SANDERSON, 738 East Main Street, Lancaster, OH 43130, For Defendant-Appellee.
    JUDGES: Hon. John W. Wise, P.J., Hon. William B. Hoffman, J., Hon. Earle E. Wise, Jr., J.
   Wise, Earle, J.

{¶ 1} Defendant-Appellant James Marcum appeals the judgment of conviction and sentence of the Court of Common Pleas of Fairfield County, Ohio. Plaintiff-Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On January 12, 2017, a man entered a Petco store on Taylor Road in Reynoldsburg Ohio and stole more than $4,000 in flea and tick medication. Three store employees witnessed the theft and one took photographs.

{¶ 3} The Fairfield County Grand Jury subsequently returned an indictment charging appellant with one count of theft in violation of R.C. 2913.02(A)(1) and (B)(2), a felony of the fifth degree.

{¶ 4} On June 27, 2017, the matter proceeded to a jury trial. At the conclusion of the state's evidence, counsel for appellant made a Crim.R 29 motion for acquittal. Counsel did not argue that the state had failed to prove venue. The trial court, however, raised the issue sua sponte. The court concluded that although the state had failed to present evidence of venue, sufficient facts were presented from which reasonable minds could differ as to whether the state had proved venue beyond a reasonable doubt. Appellant then rested without presenting evidence and without renewing his Crim.R 29 motion for acquittal.

{¶ 5} On June 28, 2017, the jury returned a verdict finding appellant guilty as charged. He was subsequently sentenced to a 6-month prison term.

{¶ 6} Appellant filed an appeal and the matter is now before this court for consideration.

I

{¶ 7} "THE TRIAL COURT COMMITTED HARMFUL ERROR IN DENYING THE DEFENDANT-APPELLANT'S MOTION FOR A DIRECTED VERDICT OF NOT GUILTY."

II

{¶ 8} "THE TRIAL COURT COMMITTED HARMFUL ERROR IN PERMITTING THE INTRODUCTION OF CERTAIN EVIDENCE IN THE PROSECUTION OF THE CASE BELOW."

III

{¶ 9} "THE DEFENDANT-APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL HEREIN."

{¶ 10} In his first assignment of error, appellant argues the trial court should have granted his motion for a directed verdict. We agree.

{¶ 11} Appellant concedes he did not raise the issue of venue when he made his Crim.R. 29 motion for acquittal and further concedes he failed to renew his motion after resting his case. In such a circumstance, it would normally be proper to consider proof of venue waived. We find, however, it is appropriate to consider the argument under a plain-error analysis, since the failure to prove venue does affect a substantial right. State v. Shedwick , 10th Dist. Franklin No. 11AP-709, 2012-Ohio-2270, 2012 WL 1852083 ¶ 38.

{¶ 12} An error not raised in the trial court must be plain error for an appellate court to reverse. State v. Long , 53 Ohio St.2d 91, 372 N.E.2d 804 (1978) ; Crim.R. 52(B). In order to prevail under a plain error analysis, appellant bears the burden of demonstrating that the outcome of the trial clearly would have been different but for the error. Id. Notice of plain error "is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." Long at paragraph three of the syllabus.

{¶ 13} Crim.R. 29 governs motion for acquittal. Subsection (A) states the following:

The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state's case.

{¶ 14} "A motion for acquittal under Crim.R. 29(A) is governed by the same standard as the one for determining whether a verdict is supported by sufficient evidence." State v. Spaulding , 151 Ohio St.3d 378, 2016-Ohio-8126, 89 N.E.3d 554, ¶ 164, reconsideration denied, 147 Ohio St.3d 1480, 2016-Ohio-8492, 66 N.E.3d 766, citing State v. Tenace , 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37. "The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." Id. , citing State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

{¶ 15} While venue is not an essential element of a charged offense, courts have required that venue be proved by the state beyond a reasonable doubt unless it is waived by the defendant. State v. Headley , 6 Ohio St.3d 475, 477, 453 N.E.2d 716 (1983). Venue need not be proven in express terms as long as it is established by all the facts and circumstances in the case. State v. Dickerson , 77 Ohio St. 34, 82 N.E. 969, paragraph one of syllabus (1907).

{¶ 16} Where venue is not specifically testified to, it may still be adequately proven where a witness pinpoints city or township where the events occurred, or where a county agency such as a Sheriff's Office is involved, and a witness from that agency testifies as to their involvement in the matter. State v. Ealy , 5th Dist. Licking No. 16-CA-31, 2016-Ohio-7927, 2016 WL 6964604 ¶ 25 ; State v. Hill , 5th Muskingum No. CT2009-0044, 2010-Ohio-4295, 2010 WL 3532090 ¶ 32-33.

{¶ 17} In State v. Depina, 5th Dist. Stark No. 2014CA00091, 2015-Ohio-2254, 2015 WL 3623804, we found "If the state has demonstrated that the alleged crime occurred in a particular location but failed to provide direct evidence that the location is in the appropriate county, Evid.R. 201(B)(1) permits judicial notice of generally-known facts within the territorial jurisdiction of the trial court; thus judicial notice may be taken that a location is in a particular county." Depina at ¶ 23 citing State v. Barr , 158 Ohio App.3d 86, 2004-Ohio-3900, 814 N.E.2d 79, ¶¶ 16-17 (7th Dist.).

{¶ 18} At trial, while two of the state's witnesses gave the address of the store, they did not specify that the address was in Fairfield County, and no county agency was involved in the matter. In overruling appellant's motion for acquittal, the trial court did so without permitting the state to reopen its case to establish venue, and without taking judicial notice that venue had been established. The court found that although there had been no express testimony concerning venue, there were enough facts and circumstances in evidence for reasonable minds to differ as to whether venue was proven beyond a reasonable doubt. T.148-150.

{¶ 19} However, as noted by the parties, the city of Reynoldsburg lies in three counties-Licking, Fairfield and Franklin. Because the city of Reynoldsburg spans three counties, recitation of an address in the city of Reynoldsburg was insufficient to establish venue in Fairfield County. We therefore find this is an exceptional circumstance requiring a finding of plain error. We sustain appellant's first assignment of error and reverse his conviction for a lack of sufficient evidence.

II, III

{¶ 20} Because we reverse appellant's conviction under the first assignment of error, his remaining assignments of error are moot and we decline to address them.

John, P.J. and Hoffman, J. concur.


author: Baldwin, J.

text:
    STATE of Ohio, Plaintiff-Appellee v. Matteo J. CLARK, Defendant-Appellant
    No. 17 CAA 08 0057
    Court of Appeals of Ohio, Fifth District, Delaware County.
    DATE OF JUDGMENT: March 21, 2018
    CAROL HAMILTON O'BRIEN, Delaware County Prosecuting Attorney, By: CORY J. GOE, Assistant Prosecuting Attorney, 140 North Sandusky Street, Delaware, Ohio 43015, For Plaintiff-Appellee
    SHAWN R. DOMINY, 1900 Polaris Parkway, Suite 450, Columbus, Ohio 43240, For Defendant-Appellant
    JUDGES: Hon. John W. Wise, P.J., Hon. W. Scott Gwin, J., Hon. Craig R. Baldwin, J.
   Baldwin, J.

{¶ 1} Appellant, Matteo J. Clark, appeals the decision of the Delaware County Court of Common denying his motion to suppress the results of a urine test. Appellee is the state of Ohio.

STATEMENT OF FACTS AND THE CASE

{¶ 2} Trooper Scott Tallman responded to the scene of an accident on November 2, 2016 and encountered appellant. The Trooper noted a strong odor of alcohol about appellant while he was in the Trooper's vehicle. Appellant admitted to consuming alcohol. Appellant did not complain of any injuries but his eyes were glassy and blood shot and he was stumbling over his words.

{¶ 3} The Trooper administered the Horizontal Gaze Nystagmus Test, Walk and Turn Test, and asked appellant to recite the alphabet backward between the letters D and Q and count backward between the numbers 58 and 73.

{¶ 4} The appellant was transported to a hospital and lost consciousness en-route. The Trooper read the terms of Form 2255 to appellant at the scene, but did not ask for appellant's consent for testing until he had been admitted to the hospital. Appellant was asked to provide a urine sample at the hospital and he expressly consented. The trial court found that timing of the collection of the urine sample fulfilled all requirements.

{¶ 5} The Ohio State Patrol Crime Lab received the urine sample on November 10, 2016 at 1:29 PM. Criminalist Jeffrey Turnau, removed the sample from refrigerated storage on November 16, 2016 and performed gas chromatography to discover the alcohol content. Criminalist Turnau discovered the alcohol content to be 0.177 grams per 100 milliliters of urine, an amount in excess of the limit described in R.C. 4511.19(A)(1)(e).

{¶ 6} The Delaware County Grand Jury indicted appellant on February 3, 2017 for five offenses: two counts of Aggravated Vehicular Assault, under R.C. 2903.08(A)(1)(a), two counts of Aggravated Vehicular Assault, under R.C. 2903.08(A)(2)(b) and one charge of Operating a Vehicle While Under the Influence of Alcohol or Drugs, R.C. 4511.19(A)(1). Appellant plead not guilty to all charges.

{¶ 7} On February 21, 2017 appellant filed motions to suppress the results of the field sobriety tests and the urine alcohol test. The state filed its responses on March 6 and 7, 2017. The trial court conducted a hearing beginning April 17, 2017 and finishing May 18, 2017. Trooper Tallman and forensic scientist Turnau testified as stated above. Mr. Turnau also testified that he was trained and certified and described how he completed the testing. He testified that the equipment had been properly calibrated, the lab was certified and that the records were maintained for three years. State regulations were on the lab bench and all testing was done in accordance with Department of Health regulations.

{¶ 8} The trial court suppressed the HGN test, but overruled the appellant's motion to suppress the results of the remaining field sobriety tests and the urine test in its entry dated May 31, 2017. On June 26, 2017, the Appellant entered pleas of guilty to all charges. A pre-sentence investigation was ordered and a sentencing hearing was scheduled for July 31, 2017.

{¶ 9} On July 31, 2017 the trial court sentenced appellant to eighteen months in prison on Count One and Count Two and sixty days for Count Five. No sentence was issued for Counts Three and Four. All sentences were ordered to be served concurrently.

{¶ 10} The Appellant filed a Notice of Appeal and a Motion to Suspend the Execution of Sentence on August 7, 2017. The sentence in this case was ordered to be suspended during the pendency of this appeal.

{¶ 11} The Appellant submits one assignment of error:

{¶ 12} THE TRIAL COURT ERRED BY OVERRULING THE DEFENDANT'S MOTION TO SUPPRESS THE URINE TEST BECAUSE THE STATE DID NOT PROVE THE URINE TEST SUBSTANTIALLY COMPLIED WITH REGULATIONS ISSUED BY THE OHIO DEPARTMENT OF HEALTH.

STANDARD OF REVIEW

{¶ 13} There are three methods of challenging on appeal a trial court's ruling on a motion to suppress. First, an appellant may challenge the trial court's findings of fact. In reviewing a challenge of this nature, an appellate court must determine whether the findings of fact are against the manifest weight of the evidence. State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982). Second, an appellant may argue that the trial court failed to apply the appropriate test or correct law to the findings of fact. See State v. Williams , 86 Ohio App.3d 37, 619 N.E.2d 1141 (4th Dist.1993), overruled on other grounds. Finally, assuming the trial court's findings of fact are not against the manifest weight of the evidence and it has properly identified the law to be applied, an appellant may argue that the trial court incorrectly decided the ultimate or final issue raised in the motion to suppress. When reviewing this type of claim, an appellate court must independently determine, without deference to the trial court's conclusion, whether the facts meet the appropriate legal standard in any given case. State v. Curry , 95 Ohio App.3d 93, 96, 641 N.E.2d 1172 (8th Dist. 1994) ; State v. Claytor (1993), 85 Ohio App.3d 623, 627, 620 N.E.2d 906 (4th Dist. 1993).

{¶ 14} Judicial officials at suppression hearings may rely on hearsay and other evidence to determine whether alcohol test results were obtained in compliance with methods approved by the Director of Health, even though that evidence may not be admissible at trial. State v. Edwards, 107 Ohio St.3d 169, 2005 -Ohio- 6180, 837 N.E.2d 752 at paragraph 2 of the syllabus. [Citing Evid.R. 101(C)(1) ].

{¶ 15} The Supreme Court of Ohio has held that rigid compliance with ODH regulations is not required as such compliance is not always humanly or realistically possible. State v. Plummer , 22 Ohio St.3d 292, 294, 490 N.E.2d 902 (1986). See, also, State v. Morton, Warren App. No. CA98-10-131, 1999 WL 296700 (May 10, 1999). Rather, if the state shows substantial compliance with the regulations, absent prejudice to the defendant, alcohol tests results can be admitted in a prosecution under R.C. 4511.19. In State v. Burnside , 100 Ohio St.3d 152,159, 2003-Ohio-5372, 797 N.E.2d 71, the Ohio Supreme Court limited the substantial-compliance standard set forth in Plummer to "excusing only errors that are clearly de minimis." The Court continued: "Consistent with this limitation, we have characterized those errors that are excusable under the substantial-compliance standard as 'minor procedural deviations.' " Id., citing State v. Homan , 89 Ohio St.3d 421, 426, 732 N.E.2d 952 (2000).

{¶ 16} The burden to establish substantial compliance, however, only extends to the level with which the defendant takes issue with the legality of the test. State v. Johnson , 137 Ohio App.3d 847, 851, 739 N.E.2d 1249 (12th Dist.2000). When the defendant's motion to suppress merely raises a generalized claim of inadmissibility and identifies the section(s) of the Administrative Code implicated in that claim, the burden on the state is slight. State v. Bissaillon , 2nd Dist. Greene No. 06-CA-130, 2007-Ohio-2349, 2007 WL 1429626, ¶ 12 ; See also State v. Embry , 12th Dist. Warren No. CA2003-11-110, 2004-Ohio-6324, 2004 WL 2698417, at ¶ 24 (simply reiterating Administrative Code provisions creates a burden on the State to respond only in general to the issues raised). The State is only required to present general testimony that there was substantial compliance with the requirements of the regulations; specific evidence is not required unless the defendant raises a specific issue in the motion to suppress. State v. Bissaillon , 2nd Dist. Greene App. No. 06-CA-130, 2007-Ohio-2349, 2007 WL 1429626, at ¶ 12.

{¶ 17} Appellant filed a motion to suppress on February 21, 2017 and listed eighteen grounds for suppression of the urine test in very general terms by reiterating the relevant Administrative Code provisions. Appellant has abandoned all but the following three allegations:

In the instant case, the results of the urine test must be suppressed unless the state can disprove the:
* * *
8. Results of controls, certifications, calibration checks and records of service and repairs were not retained in accordance with OAC 3701-53-01 as required by OAC 3701-53-04.
* * *
14. The laboratory did not successfully complete a national proficiency testing program as required by OAC 3701-53-06 and OAC 3701-53-09.
* * *
18. The laboratory director and/or laboratory technician were not subject to surveys and proficiency examinations by representatives of the director of health as required by OAC 3701-53-07 and OAC 3701-53-09.

{¶ 18} Appellant did not include any factual basis for these allegations in his motion, but relied on these general assertions and contended the state failed to substantially comply with the requirements described in the cited sections of the Ohio Administrative Code.

{¶ 19} The state offered the testimony of Criminalist Jeffrey Turnau regarding the completion of the urine test and compliance with the above cited Code Sections. When asked whether the records were maintained for three years (with Ohio Adm.Code 3701-53-01 as required by Ohio Adm.Code 3701-53-04 ) Mr. Turnau answered in the affirmative. When asked if the laboratory had completed a national proficiency testing program, Mr. Turnau confirmed that it had completed the required testing and met all the applicable requirements for testing ( Ohio Adm.Code 3701-53-06 and Ohio Adm.Code 3701-53-09 ). Mr. Turnau confirmed that the has a laboratory director's permit and that it was valid at the time the test was completed. ( Ohio Adm.Code 3701-53-07 and Ohio Adm.Code 3701-53-09 ).

{¶ 20} Appellant's argument is more focused upon the quality of the evidence, not the absence of evidence. Appellant argues that the testimony of Mr. Turnau was insufficient because he did not present documentation to support his assertions, because he was not the keeper of records and because he did not personally review the records. Appellant cites to our holdings in State v. Schlupp , 5th Dist. Coshocton No. 2012 CA 0007, 2012-Ohio-6072, 2012 WL 6675107, and State v. Troyer, 5th Dist. Stark No. 2013CA00038, 2013-Ohio-3697, 2013 WL 4678646 in support of his argument. Those cases are inapposite. In Schlupp we found that the state failed to present any testimony regarding the qualifications of the person conducting the test or the procedures followed by the lab to complete the test. Schlupp , supra at ¶ 68. In the case sub judice, Criminalist Turnau testified regarding his qualifications and the procedures followed by the lab. In Troyer, the facts revealed a violation of the relevant Ohio Administrative Code Sections regarding chain of custody and preservation of the blood sample. Further, the state was unable to provide any evidence that the lab completed a proficiency test or that the director reviewed, signed and dated the procedure manual to certify its compliance with the Rules. Troyer, supra at ¶ 22. Criminalist Turnau provided testimony that all of these requirements were satisfied. The evidence in Schlupp and Troyer reflected significant defects that are not present in the record before us.

{¶ 21} The facts in this case are analogous to the facts in State v. Lentz , where we held that "[b]ecause of the very general nature of appellant's motion to suppress, specific evidence in response is not necessary, and general testimony of compliance is sufficient." State v. Lentz, 5th Dist. Delaware No. 09CAC070065, 2010-Ohio-762, 2010 WL 716200, ¶ 16. We noted that:

"* * * record keeping, including maintenance and repair records, is important so that defendants may conduct complete and relevant discovery concerning the instrument that was used to conduct their test. However, rigid compliance with the three-year specification in the ODH record-keeping regulation is not required where the records themselves are not shown to be misleading, inaccurate, or incomplete.

{¶ 22} Lentz , supra at ¶ 19

{¶ 23} The appellant did not provide any evidence that would show that the records were misleading, inaccurate or incomplete. Appellant had the opportunity to obtain and review the records but elected not to do so. "Appellant's failure to attempt to discover factual support for his motion to suppress relating to the state's compliance [with the relevant administrative code sections] relieved the state of any burden to respond to appellant's allegations with greater specificity. State v. Hernandez-Rodriguez, 11th Dist. Portage No. 2006-P-0121, 2007-Ohio-5200, 2007 WL 2821957, ¶ 53

{¶ 24} The appellee presented sufficient evidence to address the general assertions of the appellant and establish substantial compliance with the regulations, triggering the presumption of admissibility and shifting the burden to appellant to rebut the presumption by a showing of prejudice. Lentz , supra at ¶ 20. Appellant has not offered any evidence of prejudice and, in fact, restricts his argument to his contention that the appellee has not substantially complied.

{¶ 25} For the forgoing reasons, the decision of the Delaware County Court of Common Pleas is affirmed. Costs assessed to appellant.

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


author: KATHLEEN ANN KEOUGH, P.J.: TIM McCORMACK, J., DISSENTING:

text:
    CUYAHOGA METROPOLITAN HOUSING AUTHORITY, Plaintiff-Appellant v. FRATERNAL ORDER OF POLICE OHIO LABOR COUNCIL, INC., Defendant-Appellee
    No. 105209
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: March 22, 2018
    Adrian D. Thompson, Jennifer B. Orr, Taft Stettinius & Hollister, L.L.P., 200 Public Square, Ste. 3500, Cleveland, OH 44114, ATTORNEYS FOR APPELLANT
    Michael W. Piotrowski, 2721 Manchester Road, Akron, OH 44319, ATTORNEY FOR APPELLEE
    BEFORE: Keough, P.J., Kilbane, J., and McCormack, J.
    JOURNAL ENTRY AND OPINION
   KATHLEEN ANN KEOUGH, P.J.:

{¶ 1} Plaintiff-appellant, Cuyahoga Metropolitan Housing Authority ("CMHA"), appeals from the judgment of the Cuyahoga County Common Pleas Court that affirmed an arbitrator's award reinstating Detective Robert Wohlheter ("Wohlheter") after he was terminated by CMHA for his conduct in an incident involving a suspected drug transaction, and for his conduct during the subsequent investigation of the incident. For the reasons that follow, we affirm the trial court's decision.

I. The December 3, 2013 Incident

{¶ 2} Wohlheter worked in the CMHA police department as a detective. On December 3, 2013, he and two other detectives, Robert Weis ("Weis") and Clinton Ovalle ("Ovalle"), were conducting "quality of life" patrols on Lakeview Estates, a CMHA property. As found by the arbitrator, the events leading to the instant grievance matter unfolded as follows.

{¶ 3} While patrolling the CMHA property, the three officers observed what appeared to be a drug transaction between a man and a woman, later identified as Thomas Moore ("Moore") and Tamblyn Stanley ("Stanley"), respectively. The officers exited their vehicle to investigate the suspected drug transaction. Spotting the officers, Stanley began to walk away. Ovalle approached her while the other two officers approached Moore. While Ovalle searched Stanley, Weis and Wohlheter ordered Moore to the ground, handcuffed him, and conducted a pat-down search. They found a CMHA key in his possession but no drugs. Moore told the detectives the key belonged to his child's mother, who was a tenant in a CMHA apartment. The officers released Stanley, but decided to search the CMHA apartment for drugs. They placed Moore in the police vehicle and had him direct them to the apartment. As soon as they entered the apartment building, the officers detected the odor of marijuana and encountered another man who appeared to have been smoking marijuana. Ovalle stayed behind to investigate that man while Weis and Wohlheter continued to the apartment with Moore, who was still handcuffed.

{¶ 4} Det. Weis used the seized key to open the door of the apartment. While Weis stood by the doorway with Moore, Wohlheter entered the apartment. As Weis testified later, Wohlheter searched the apartment; specifically, he searched the kitchen, refrigerator, freezer, cupboard cabinets above the refrigerator, and two cereal boxes. No drugs were found, however. Ovalle then arrived and also entered the apartment. He talked to Wohlheter and decided that they could not legally search the apartment. The two then exited the apartment. According to Weis's testimony, Wohlheter was in the apartment for about ten minutes.

II. The Internal Investigation of the Incident

{¶ 5} Stanley subsequently filed a complaint alleging that Ovalle used excessive force when searching her. Sergeants Gregory Drew ("Drew") and Paul Styles ("Styles") were assigned to investigate her complaint. As part of that investigation, they interviewed the three officers, Stanley, and Moore. The investigation revealed that the three detectives engaged in conduct that violated CMHA police department's policies and procedures. Drew found Wohlheter not only participated in the unlawful arrest and transportation of Moore from one location to another, but also unlawfully searched the apartment and then provided an untruthful account of the events during the subsequent investigation of the matter.

{¶ 6} According to Drew, Wohlheter was deceptive and tried to cover up his actions during the investigation. Wohlheter initially misled the investigation by claiming Moore was not handcuffed and opened the apartment door himself, although Wohlheter later admitted in the predisciplinary hearing that it was Weis who opened the door. Wohlheter maintained he was in the apartment for only 10 to 12 seconds. He also denied searching the kitchen. These statements were directly inconsistent with both Weis's and Moore's accounts of the events, which indicated Moore was handcuffed the entire time and Wohlheter stayed in the apartment for about ten minutes and searched some items in the kitchen.

{¶ 7} After a predisciplinary review, CMHA terminated Wohlheter on April 24, 2014. CMHA cited Wohlheter's violation of CMHA's rules and regulations, violation of Moore's civil rights, illegal search of the apartment, and dishonest conduct during the investigation. Ovalle was also terminated and Weis was given a 30-day suspension.

III. The Grievance and Arbitration

{¶ 8} On April 30, 2014, on behalf of Wohlheter, the Fraternal Order of Police, Ohio Labor Council, Inc. ("the union") filed a grievance procedure pursuant to the Collective Bargaining Agreement ("CBA"). The union contended the termination was without just cause. The grievance was denied. The union then pursued arbitration on behalf of Wohlheter pursuant to the CBA.

{¶ 9} The arbitrator conducted a two-day hearing. Before the arbitrator, the union argued that Wohlheter did not engage in any misconduct and he was not dishonest during the internal investigation. The union also argued CMHA engaged in disparate treatment-punishing Wohlheter more severely than Weis, who was a more senior officer and only received a 30-day suspension as opposed to Wohlheter's termination, and that it did not have just cause to terminate Wohlheter.

{¶ 10} CMHA argued that Wohlheter was terminated for just cause-for the illegal arrest of Moore and illegal search of the apartment, and for his dishonesty during the investigation of the incident. CMHA argued that it was not required to impose progressive discipline because of Wohlheter's dishonesty during the investigation.

IV. The Arbitrator's Decision

{¶ 11} On August 4, 2015, the arbitrator issued a decision reinstating Wohlheter, with a substantial suspension (nearly 16 months) and denial of back-pay. The arbitrator found Wohlheter violated CMHA's rules and regulations in the prolonged detainment of Moore and the illegal search of the apartment. The arbitrator also found Wohlheter engaged in acts of dishonesty. But because of the difference in treatment of penalties between Wohlheter and Weis, and because of the mitigating evidence in Wohlheter's favor, the arbitrator ultimately concluded that termination was "too severe" and "not reasonable under the just cause provision of the CBA." The arbitrator reached this decision as follows.

{¶ 12} Here, the arbitrator acknowledged CMHA Police Chief Andres Gonzalez's emphasis on Weis's honesty and recognized that, despite an initial lack of candor during Drew's interview of him, Weis eventually provided a truthful and complete account of the unlawful detention of Moore and search of the apartment. Weis's ultimate truthfulness enabled the CMHA police department in its investigation to ascertain the facts surrounding the incident. The arbitrator also noted Chief Gonzalez's emphasis on Weis's expression of remorse as an indication that he has learned a valuable lesson from the incident and could continue to be an asset to CMHA police department. And the arbitrator acknowledged Weis's contrite attitude both later during the investigation and at the arbitration hearing. But the arbitrator also remarked that, although eventually truthful, Weis initially attempted to hide the illegal detention and search as well, and he only became truthful when pressed further. Ultimately, although finding that Wohlheter's conduct during the incident was more egregious than Weis's conduct, the arbitrator believed the difference in the conduct did not justify the "level of difference in the penalty." The arbitrator acknowledged, however, that because Wohlheter's conduct was more severe, "a more severe penalty is justified." After considering mitigating factors, such as Wohlheter's work record, service time, and the gravity of the offenses, the arbitrator decided Wohlheter's penalty for his conduct should be a substantial suspension without pay instead of termination.

{¶ 13} In reinstating Wohlhether, the arbitrator further acknowledged concern over public policy but stated that "there is no evidence in the record which indicates that there is 'an explicit, well-defined and dominant public policy' against the reinstatement of an officer who has engaged in the misconduct as outlined in the decision." See Arbitrator's Decision, page 29. Accordingly, the arbitrator ordered CMHA to modify the disciplinary action to a suspension from the date of termination to the date of reinstatement, without back pay or benefits.

V. Trial Court's Decision

{¶ 14} CMHA filed a motion to vacate the arbitrator's award with the trial court. The trial court denied CMHA's motion, stating that the arbitrator's decision to reinstate Wohlheter drew its essence from the CBA and did not violate public policy.

{¶ 15} CMHA now appeals, raising as its sole assignment of error that the trial court erred by not vacating the report and award of the arbitrator pursuant to R.C. 2711.10(D) because the arbitration award is unlawful, arbitrary, and capricious and is against public policy.

VI. Standard and Review Under R.C. 2711.10

{¶ 16} "The public policy favoring arbitration requires that courts have only limited authority to vacate an arbitrator's award." Assn. of Cleveland Fire Fighters, Local 93 of the Internatl. Assn. of Fire Fighters v. Cleveland, 99 Ohio St.3d 476, 2003-Ohio-4278, 793 N.E.2d 484, ¶ 13.

{¶ 17} Pursuant to R.C. 2711.10(D), the court of common pleas shall make an order vacating an arbitration award if "[t]he arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made." "Given the presumed validity of an arbitrator's award, a reviewing court's inquiry into whether the arbitrator exceeded his authority, within the meaning of R.C. 2711.10(D), is limited." Bd. of Edn. of Findlay City School Dist. v. Findlay Edn. Assn. , 49 Ohio St.3d 129, 551 N.E.2d 186 (1990), paragraph one of the syllabus.

{¶ 18} This court's review is similarly limited, confined to an evaluation of the trial court's order confirming, modifying, or vacating the arbitration award. Cleveland v. Mun. Foremen & Laborers' Union, Local 1099 , 2017-Ohio-4188, 92 N.E.3d 189, ¶ 15 (8th Dist.). "The substantive merits of the original arbitration award are not reviewable on appeal absent evidence of material mistake or extensive impropriety." N. Ohio Sewer Contrs., Inc. v. Bradley Dev. Co. , 159 Ohio App.3d 794, 2005-Ohio-1014, 825 N.E.2d 650, ¶ 17 (8th Dist.).

{¶ 19} "Judicial review of labor arbitration awards is limited and courts must afford substantial deference to the arbitrator's decision." Cuyahoga Metro. Hous. Auth. v. SEIU Local 47 , 8th Dist. Cuyahoga No. 88893, 2007-Ohio-4292, 2007 WL 2391083, ¶ 11, citing Painesville City Local Schools Bd. of Edn. v. Ohio Assn. of Pub. School Emps. , 11th Dist. Lake No. 2005-L-100, 2006-Ohio-3645, 2006 WL 1976751.

The limited scope of judicial review of arbitration decisions comes from the fact that arbitration is a creature of contract. Contracting parties who agree to submit disputes to an arbitrator for final decision have chosen to bypass the normal litigation process. If parties cannot rely on the arbitrator's decision (if a court may overrule that decision because it perceives factual or legal error in the decision), the parties have lost the benefit of their bargain. Arbitration, which is intended to avoid litigation, would instead merely become a system of "junior varsity trial courts" offering the losing party complete and vigorous de novo review.

(Emphasis sic.) Motor Wheel Corp. v. Goodyear Tire & Rubber Co. , 98 Ohio App.3d 45, 52, 647 N.E.2d 844 (8th Dist.1994).

{¶ 20} "An arbitrator derives his authority from the express terms of the collective-bargaining agreement between the parties." Fostoria v. Ohio Patrolmen's Benevolent Assn. , 106 Ohio St.3d 194, 2005-Ohio-4558, 833 N.E.2d 720, ¶ 11. "An arbitrator's award draws its essence from a collective bargaining agreement when there is a rational nexus between the agreement and the award, and where the award is not arbitrary, capricious or unlawful." Mahoning Cty. Bd. of Mental Retardation & Dev. Disabilities v. Mahoning Cty. TMR Edn. Assn. , 22 Ohio St.3d 80, 488 N.E.2d 872 (1986), paragraph one of the syllabus. "An arbitrator's award departs from the essence of a collective bargaining agreement when: (1) the award conflicts with the express terms of the agreement, and/or (2) the award is without rational support or cannot be rationally derived from the terms of the agreement." Ohio Office of Collective Bargaining v. Ohio Civ. Serv. Emps. Assn., Local 11, AFSCME , 59 Ohio St.3d 177, 179, 572 N.E.2d 71 (1991).

{¶ 21} " 'Where an arbitrator's decision draws its essence from the collective bargaining agreement, and in the absence of language in the agreement that would restrict such review, the arbitrator, after determining that there was just cause to discipline an employee, has the authority to review the appropriateness of the type of discipline imposed .' " (Emphasis added) Ohio Patrolmen's Benevolent Assn. v. Findlay , 149 Ohio St.3d 718, 2017-Ohio-2804, 77 N.E.3d 969, ¶ 17, quoting Bd. of Trustees of Miami Twp. v. Fraternal Order of Police, Ohio Labor Council, Inc. , 81 Ohio St.3d 269, 690 N.E.2d 1262 (1998), syllabus.

{¶ 22} "Once it is determined that the arbitrator's award draws its essence from the collective bargaining agreement and is not unlawful, arbitrary or capricious, a reviewing court's inquiry for purposes of vacating an arbitrator's award pursuant to R.C. 2711.10(D) is at an end." Findlay Edn. Assn. , 49 Ohio St.3d at paragraph two of the syllabus, 551 N.E.2d 186.

{¶ 23} In this case, the arbitration award drew its essence from the terms of the CBA because it was based on Wohlheter's contractual right that any disciplinary action taken by CMHA will only be for "just cause." A "just cause" inquiry requires the arbitrator to make two determinations: (1) whether a cause for discipline exists, and (2) whether the amount of discipline was proper under the circumstances. Bd. of Trustees of Miami Twp. , 81 Ohio St.3d at 271-272, 690 N.E.2d 1262. The arbitrator found that a just cause for discipline existed. The more difficult question for the arbitrator in this dispute was whether CMHA had just cause to terminate Wohlheter.

{¶ 24} While recognizing and appreciating CMHA's concern for the trustworthiness of its officers, the arbitrator considered disparate treatment of Weis and Wohlheter, as well as mitigating factors such as Wohlheter's five years of service with acceptable performance, his lack of prior disciplinary action, and an absence of indication that Wohlheter cannot be rehabilitated to perform his duties as an officer. Where just cause is not defined in the CBA, as here, the arbitrator appropriately considered mitigating circumstances as part of the just cause analysis. Cleveland v. Cleveland Police Patrolmen's Assn. , 2016-Ohio-702, 47 N.E.3d 904, ¶ 34 (8th Dist.). The arbitrator decided termination was disparate, too severe under the circumstances, and violated the just cause provision of the CBA. The arbitrator decided a substantial disciplinary action would have been sufficient to address Wohlheter's misconduct.

{¶ 25} As properly noted by the trial court, the arbitrator's consideration of mitigating factors was not in conflict with any express terms of the controlling CBA, and the consideration was part of the just-cause analysis when determining the appropriateness of termination as discipline for Wohlheter's misconduct. The trial court recognized that the arbitrator, after determining there was just cause to discipline Wohlheter, had authority to review the appropriateness of the disciplinary action and to fashion a remedy. Accordingly, the arbitration award drew its essence from the agreement and was not unlawful, arbitrary, or capricious.

VII. The Award Does Not Violate Public Policy

{¶ 26} Although we have determined the arbitration award here drew its essence from the CBA and was not unlawful, arbitrary, or capricious, CMHA contends that the arbitration award is unenforceable because reinstating Wohlheter violates public policy.

{¶ 27} To vacate an award on public policy grounds, it is not Wohlheter's conduct that must be shown to have violated public policy, but rather, CMHA must establish that the arbitrator's award that significantly sanctioned Wohlheter (but reinstated him) violated a well-defined and dominant public policy. See S.W. Ohio Regional Transit Auth. v. Amalgamated Transit Union, Local 627 , 91 Ohio St.3d 108, 742 N.E.2d 630 (2001) ; W.R. Grace & Co. v. Local Union 759, Internatl. Union of the United Rubber, Cork, Linoleum & Plastic Workers of Am. , 461 U.S. 757, 103 S.Ct. 2177, 76 L.Ed.2d 298 (1983).

{¶ 28} In this case, the arbitrator acknowledged that a claim of dishonesty against a police officer was very stigmatizing and found that Wohlheter was dishonest during the investigation. Nevertheless, the arbitrator stated that there was no well-defined and dominant public policy against reinstating an officer such as Wohlheter for the engaged misconduct.

{¶ 29} The Ohio Supreme Court has recognized if an arbitrator's interpretation of a CBA violates public policy, the resulting award is unenforceable. S.W. Ohio Regional Transit Auth. , at 112, 742 N.E.2d 630, citing W.R. Grace at 766, 103 S.Ct. 2177. W.R. Grace & Co. v. Local Union 759, Internatl. Union of the United Rubber, Cork, Linoleum & Plastic Workers of Am. , 461 U.S. 757, 766, 103 S.Ct. 2177, 76 L.Ed.2d 298 (1983).

{¶ 30} However, "vacating an arbitration award pursuant to public policy is a narrow exception to the 'hands off' policy that courts employ in reviewing arbitration awards and 'does not otherwise sanction a broad judicial power to set aside arbitration awards as against public policy.' " S.W. Ohio Regional Transit Auth. , at id. , quoting United Paperworkers Internatl. Union, AFL-CIO v. Misco, Inc. , 484 U.S. 29, 43, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987). The public policy "must be well defined and dominant, and is to be ascertained by 'reference to the laws and legal precedents and not from general considerations of supposed public interests.' " W.R. Grace at id. , quoting Muschany v. United States , 324 U.S. 49, 66, 65 S.Ct. 442, 89 L.Ed. 744 (1945). Moreover, the public policy must be "explicit."

E. Associated Coal Corp. v. United Mine Workers of Am., 531 U.S. 57, 67, 121 S.Ct. 462, 148 L.Ed.2d 354 (2000), quoting W.R. Grace at 766, 103 S.Ct. 2177.

{¶ 31} Accordingly, our analysis begins with an examination of the "laws and legal precedents" to determine whether the reinstatement of Wohlheter under the collective bargaining agreement violates an explicit, well defined, and dominant public policy.

{¶ 32} This court finds no law prohibiting the reinstatement of a police officer for making dishonest statements during an internal investigation. Nor does CMHA or the dissent cite to any. Instead, CMHA cites to dicta and otherwise distinguishable case law to advocate for a bright-line rule that would prevent retention or reinstatement of any police officer found to be "dishonest." As discussed more fully below, the cases CMHA relies upon are distinguishable and do not justify vacating the arbitrator's award in this case.

{¶ 33} Initially, we note that dishonest acts by a police officer that render an arbitration award unenforceable are not well-defined under Ohio law. While the Fourth Appellate District in Ironton v. Rist , 4th Dist. Lawrence No. 10CA10, 2010-Ohio-5292, 2010 WL 4273235, held that a "dominant well-defined public policy" exists that prohibits the reinstatement of a police officer who falsifies a traffic ticket, we do not find this precedent prohibits reinstatement related to any or all acts of dishonesty. In Rist , the court's holding is rooted in its finding that, aside from the officer committing a criminal act of falsification, the officer also violated R.C. 737.11, which expressly provides that "the police force shall * * * obey and enforce * * * all criminal laws of the state and the United States." Wohlheter, however, was not terminated for falsifying a police report and therefore the public policy recognized in Rist does not preclude his reinstatement in this case.

{¶ 34} Contrary to the dissent's suggestion, Rist does not stand for the proposition that Ohio has a well defined and dominant public policy against a contractual agreement to severely punish yet reinstate a police officer who engages in any acts of dishonesty in his or her official capacity. Such a broad reading of Rist directly contravenes the Ohio Supreme Court and the United States Supreme Court's admonitions. Indeed, we are constrained to uphold the arbitrator's decision unless the arbitrator's interpretation of the collective bargaining agreement violates some explicit, well defined, and dominant public policy. Extending Rist beyond its holding for a blanket proposition ignores our limited review and dangerously transforms a narrow exception into a broad authority for courts to severely undermine the purpose of a collective bargaining agreement.

{¶ 35} As stated previously, in resolving CMHA's arguments, our inquiry is not whether Wohlheter's conduct itself violates public policy, but whether the arbitrator's decision to reinstate him did so. Dayton v. AFSCME, Ohio Council 8 , 2d Dist. Montgomery No. 21092, 2005-Ohio-6392, 2005 WL 3240794, ¶ 23, citing S.W. Ohio Regional Transit Auth. at 112-113, 742 N.E.2d 630 ; see also Cleveland v. Cleveland Police Patrolmen's Assn. , 2016-Ohio-702, 47 N.E.3d 904, ¶ 44 (8th Dist.) ; Fraternal Order of Police, Lodge 8 v. Cleveland , 8th Dist. Cuyahoga No. 102565, 2015-Ohio-4188, 2015 WL 5867410, ¶ 44.

{¶ 36} In S.W. Ohio Regional Transit Auth. , the regional transit authority argued that it was against public policy to reinstate a safety-sensitive employee who was terminated for testing positive for a controlled substance. Despite recognizing Ohio and federal laws that require drug testing and prohibit the use of controlled substances by transportation employees, the Supreme Court held that "Ohio has no dominant and well-defined public policy that renders unlawful an arbitration award reinstating a safety-sensitive employee who was terminated for testing positive for a controlled substance, assuming that the award is otherwise reasonable in its terms for reinstatement." Id. at 115, 742 N.E.2d 630. Thus, recognizing that an officer's dishonest conduct itself violates public policy is not sufficient to render an arbitration award unenforceable in the absence of a well-defined and dominant public policy against the reinstatement of the officer under the CBA.

{¶ 37} Our inquiry therefore requires deciding whether the arbitrator's award ordering Wohlheater's reinstatement with nearly a 17-month suspension without back pay (after finding him to be untruthful during an internal investigation) violates public policy. And, absent an award that clearly violates a well-defined and dominant public policy, our review requires deference to upholding the arbitrator's decision. We find that the cases relied on by CMHA do not evidence a well-defined and dominant public policy that renders unlawful an otherwise reasonable arbitration award reinstating Wohlheater for his dishonest conduct. While these cases may recognize that Wohlheater's conduct violates general principles of public policy, they fail to establish a well-defined and dominant public policy prohibiting his reinstatement under the factual circumstances of this case.

{¶ 38} For example, aside from Rist , CMHA relies on the Ohio Supreme Court's decisions in State v. Mole , 149 Ohio St.3d 215, 2016-Ohio-5124, 74 N.E.3d 368, and Jones v. Franklin Cty. Sheriff , as legal precedent of a well-defined public policy that police officers are held to a higher standard of conduct than the general public. Although we do not dispute this point, we cannot agree that these cases embody a well-defined public policy against suspending rather than terminating a police officer for dishonest conduct pursuant to a CBA, overcoming the high hurdle to vacate an arbitration award. As this court has previously stated,

[N]either Jones nor [ Rist ] supports the proposition that a city must be permitted, as a matter of public policy, to dismiss a police officer, or that an arbitrator must be prohibited from using broad, discretionary authority to modify a disciplinary sanction of dismissal under a collective bargaining agreement, whenever a city concludes that an officer's conduct falls below the "higher standard of conduct" to which police officers are held and "diminishe[s] the esteem" of the police department and its personnel.

Cleveland v. Cleveland Police Patrolmen's Assn. , 8th Dist. Cuyahoga No. 103010, 2016-Ohio-702, 47 N.E.3d 904, ¶ 49, appeal not allowed , 146 Ohio St.3d 1430, 2016-Ohio-4606, 52 N.E.3d 1204.

{¶ 39} Ohio courts have consistently recognized that " 'public policy does not demand that a city have unbridled authority to terminate its employees for their misconduct.' " Wright State Univ. v. FOP , 2d Dist. Greene No. 2016-CA-35, 2017-Ohio-854, 2017 WL 946328, quoting Dayton v. FOP, Captain John C. Post Lodge No. 44 , 2d Dist. Montgomery No. 18158, 2000 WL 706829, at *5 (June 2, 2000). Indeed, the public policy that police officers are held to a higher standard still allows an arbitrator to use broad, discretionary authority to review the facts surrounding the discipline and the mitigating factors presented, and determine whether the discipline imposed should be upheld, overturned, or modified. Dayton at id.

{¶ 40} Likewise, we find CMHA's reliance on Cuyahoga Metro. Hous. Auth. v. FOP, Ohio Labor Council, Inc. , 8th Dist. Cuyahoga No. 104319, 2017-Ohio-190, 2017 WL 237821, as legal precedent evidencing a well-defined and dominant public policy against reinstating an officer for dishonest conduct to be misplaced. In Cuyahoga Metro. Hous. Auth. , this court upheld the arbitrator's decision and found the award enforceable. This court therefore did not adopt, let alone apply, this public policy standard. To the extent that the opinion notes that Rist is "representative of a line of cases demonstrating a strong public policy" against the retention of police officers "who engage in acts of dishonest in their official capacity," this statement is dicta and does not create a well-defined and dominant public policy. Id. at ¶ 13. This is particularly true where the court did not address or analyze any alleged dishonesty by the police officer. Thus, it would be improper for us to convert mere dicta into binding precedent. See Morris v. State , 8th Dist. Cuyahoga No. 80839, 2002-Ohio-5975, 2002 WL 31429811 (recognizing that dicta is not binding in subsequent cases as legal precedent).

{¶ 41} Notably, the Second Appellate District recently addressed a case nearly analogous to the instant case and rejected the appellant's claim that Ohio has a well-defined and dominant public policy against reinstating police officers for dishonest conduct, despite the claim that police officers are held to a higher standard. Wright State Univ. v. FOP , 2d Dist. Greene No. 2016-CA-35, 2017-Ohio-854, 2017 WL 946328. In FOP , the arbitrator reinstated a police officer who made dishonest statements to his lieutenant about a coworker's absence. While the court recognized that officer honesty and integrity are vital and did not condone the officer's actions, it nonetheless held: "we cannot find, any public policy that renders unlawful an arbitration award reinstating an officer in this type of situation." Id. at ¶ 36. Thus, unlike Cuyahoga Metro. Hous. Auth .-which referenced the public policy question in dicta-the issue of any public policy that renders unlawful an arbitration award reinstating an officer for making a dishonest statement was actually decided and rejected in FOP . We find this authority applicable and persuasive.

{¶ 42} In this case, the arbitrator considered Wohlheter's five years of service with acceptable performance, his lack of prior disciplinary action, and an absence of any indication that Wohlheter cannot be rehabilitated to perform his duties as an officer. But the arbitrator did not excuse or turn a blind eye to Wohlheter's dishonesty during the investigation. The arbitrator's award punished Wohlheter by imposing a substantial suspension (from the date of termination to the date of reinstatement) without back pay and benefits. This award is not contrary to any explicit or well-defined public policy, and follows the arbitrator's broad, discretionary authority to modify a disciplinary sanction of dismissal under the CBA.

{¶ 43} Although a police officer's dishonesty during an internal investigation may violate an ethical duty, and is against the public interest of police officers being honest, suspending rather than terminating an officer who is dishonest does not necessarily violate an explicit public policy. This court does not condone Wohlheter's or any officer's dishonesty, and this case does not stand for the proposition that dishonesty will never require termination. As the Ohio Supreme Court stated, "an employee's overall disciplinary record, the egregiousness of the infraction, problems with recidivism, or other issues could constitute sufficient causes for discharge. Of course, these are matters that are contingent upon the terms of the CBA, as well as the arbitrator's interpretation of those terms." S.W. Ohio Regional Transit Auth. at 115, 742 N.E.2d 630.

{¶ 44} Accordingly, the arbitration award modifying Wohlheter's termination to a substantial suspension, without back pay and benefits, is not against public policy and is in line with the progressive disciplinary procedures set forth in the CBA and CMHA Personnel Policies and Procedures Manual. The trial court acknowledged as such by concluding:

The arbitrator is not prohibited from using his broad, discretionary authority to modify a disciplinary sanction of dismissal under a collective bargaining agreement even though [the arbitrator] concluded that the conduct fell below the higher standard of conduct to which police officers are held. As such, this court finds that the arbitrator's decision to reinstate did not violate public policy.

VIII. Conclusion

{¶ 45} Accordingly, the arbitration award in this case drew its essence from the CBA, was not unlawful, arbitrary, or capricious, and is not against public policy. The assignment of error is overruled.

{¶ 46} Judgment affirmed.

MARY EILEEN KILBANE, J., CONCURS;

TIM McCORMACK, J., DISSENTS WITH SEPARATE OPINION

TIM McCORMACK, J., DISSENTING:

{¶ 47} I agree with the majority that the arbitrator had broad authority to fashion a remedy. That authority, though, is not limitless. I agree with CMHA that this arbitration award is unenforceable. This particular award violates public policy. It contravenes Ohio law. Accordingly, I respectfully dissent.

{¶ 48} I agree with the majority that the public policy exception to our review of arbitration awards is narrow. I fully disagree with the majority's application of the exception in this case.

{¶ 49} Here, the arbitrator acknowledged that a claim of dishonesty against a police officer was very stigmatizing and, therefore, CMHA must demonstrate by clear and convincing evidence that Wohlheter was dishonest. Applying that standard, the arbitrator found that Wohlheter committed dishonest conduct. The arbitrator's decision stated, in part:

The evidence demonstrates that CMHA had sufficient evidence before it to determine that the Grievant gave misleading statements during the investigation of the incident. Even if the Grievant could have been mistaken about who opened the door to the apartment, the evidence obtained through the investigation revealed that the Grievant searched the apartment. The Grievant maintained that he did not search the apartment. Moreover, the Grievant said they were in the apartment 10-12 seconds. This is much different than the 10 minutes revealed during the investigation, and is clearly not the result of a mistake. Moreover the Grievant stated that all three officers dealt with Antonio Shanklin and the marijuana and then went to the apartment together. It was revealed that this was not true. The evidence reveals that Detective Ovalle stayed and dealt with Mr. Shanklin while the Grievant, Detective Weis and Moore went upstairs to the apartment. It is not likely that this was a mistake on the Grievant's part. The Grievant should recall if he dealt with Mr. Shanklin; this is not a minor detail, it's hard to believe that the Grievant would be mistaken about that. Therefore, CMHA provided clear and convincing evidence that the Grievant was not truthful during the investigation.
The evidence establishes that the Authority provided clear and convincing evidence that the grievant engaged in misconduct and violated several of CMHA's rules and regulations. The Authority provided evidence that the Grievant participated in the unnecessary prolonged detainment of Moore, the illegal search of Terracia Goin's apartment and the Authority provided sufficient evidence that Grievant was dishonest during the investigation.

{¶ 50} To determine whether there is a well-defined and dominant public policy prohibiting the reinstatement of a police officer who commits acts of dishonesty, we are to examine and seek guidance from "laws and legal precedents." S.W. Ohio Regional Transit Auth. v. Amalgamated Transit Union, Local 627 , 91 Ohio St.3d at 112, 742 N.E.2d 630.

{¶ 51} R.C. 737.11, which outlines the general duties of police officers and firefighters, provides that "[t]he police force of a municipal corporation shall preserve the peace, protect persons and property, and obey and enforce all ordinances of the legislative authority of the municipal corporation, [and] all criminal laws of the states and the United States." In fulfilling these obligations, "honesty is vital to the effective performance of these duties and to ensuring public trust and confidence in the police force." Ironton v. Rist , 4th Dist. Lawrence No. 10CA10, 2010-Ohio-5292, 2010 WL 4273235, ¶ 20, citing Brink v. Wadsworth , 9th Dist. Medina No. 1728, 1988 WL 134279, 2 (Dec. 14, 1988) (the need to ensure the public trust and confidence in the police is vital) and Cincinnati v. Queen City Lodge No. 69, Fraternal Order of Police , 1st Dist. Hamilton No. C-040454, 2005-Ohio-1560, 2005 WL 736667, ¶ 21-22 (it is the general public policy that law enforcement officers must not lie and honesty is expected of all law enforcement officers).

{¶ 52} In Rist , a police officer falsified a traffic ticket and was terminated. The arbitrator reinstated the officer. The Fourth District found the arbitration award unenforceable, concluding that Ohio has "a dominant, well-defined public policy against the reinstatement of an officer who falsifies a police report." Id. at ¶ 20. The Fourth District relied on both R.C. 737.11 and Ohio case law in reaching this conclusion. The court first noted the obligations of a police force in R.C. 737.11 quoted above. The court went on to reference Ohio case law recognizing the vital role that honesty plays in police work and cited the supporting case law from other Ohio districts cited above. Further, the court quoted the following passage from a decision by the Supreme Court of Ohio:

"[I]t is settled public policy * * * that police officers are held to a higher standard of conduct than the general public. * * * Law enforcement officials carry upon their shoulders the cloak of authority of the state. For them to command the respect of the public, it is necessary then for these officers even when off duty to comport themselves in a manner that brings credit, not disrespect, upon their department."

(Citations omitted.) Rist at ¶ 20, quoting Jones v. Franklin Cty. Sheriff , 52 Ohio St.3d 40, 43, 555 N.E.2d 940 (1990).

{¶ 53} Based on these laws and legal precedents, the Fourth District held that Ohio has a well-defined and dominant public policy against the reinstatement of an officer who falsified a police report. The Fourth District's decision was left standing by the Supreme Court of Ohio.

{¶ 54} Rist was cited with approval by the Supreme Court of Ohio in a recent decision, State v. Mole , 149 Ohio St.3d 215, 2016-Ohio-5124, 74 N.E.3d 368. In Mole , the Supreme Court stated that "the interest in holding peace officers to a higher standard is embedded in Ohio law" and "the need to maintain the efficiency and honesty of law enforcement serving the community is widely recognized."

Id. at ¶ 48. As described by the Supreme Court of Ohio, the Fourth District in Rist struck down the reinstatement of an officer who falsified a traffic ticket as "violating well-defined public policy favoring honest police force that commands the public trust." Id.

{¶ 55} Respectfully, the majority's narrative offered in an effort to distinguish this case from Rist, 4th Dist. Lawrence No. 10CA10, 2010-Ohio-5292, and Jones, 52 Ohio St.3d 40, 43, 555 N.E.2d 940, is not persuasive. The majority asserts an inappropriately narrow interpretation of the public policy prohibition in Rist , finding that prohibiting the reinstatement of a police officer who falsifies a traffic ticket does not prohibit reinstatement related to any or all acts of dishonesty. The majority then concludes that because Wohlheter was not terminated for falsifying a police report, the public policy in Rist does not preclude his reinstatement.

{¶ 56} We note first that, although the facts in Rist involved the falsification of a traffic ticket, the court found that Ohio has a well-defined and dominant public policy expressly prohibiting the reinstatement of an officer who falsifies a report. While the prohibition is certainly more than a "general consideration of supposed public interest," it is clearly not limited to falsifying traffic tickets. W.R. Grace & Co. v. Local Union 759, Internatl. Union of the United Rubber, Cork, Linoleum & Plastic Workers of Am. , 461 U.S. 757, 766, 103 S.Ct. 2177, 76 L.Ed.2d 298 (1983).

{¶ 57} Further, while the court's holding in Rist was undoubtedly bolstered by the fact that falsification is a criminal act, its public policy holding was ultimately rooted in the notion that "honesty is vital to the effective performance of [police] duties and to ensuring public trust and confidence in the police force." Rist at ¶ 20. In light of this reasoning, I find the reinstatement of an officer who first violated department policy and Ohio laws of search and seizure and subsequently made repeated false statements and provided a knowingly untruthful account of those events during an official investigation to be equally violative of the public policy against reinstatement of dishonest officers.

{¶ 58} This position is further supported by the unique circumstances of the facts underlying the investigation in this case as articulated by CMHA Police Chief Andres Gonzalez. Gonzalez testified at length before the arbitrator and explained that, as a CMHA officer, Wohlheter was tasked with serving an economically disadvantaged community that has historically had a high level of distrust of the police. He went on to explain that CMHA police officers are unique in that they encounter the same residents and their families frequently and, therefore, earning the community's trust is of utmost importance in the officers' ability to carry out their duties. In light of this context, an officer making false statements during an investigation into his own commission of an unnecessary prolonged detainment and illegal search is just as detrimental, if not more so, to a police force's ability to effectively carry out its duties under R.C. 737.11 as falsifying a traffic ticket.

{¶ 59} Like Wohlheter, Det. Ovalle also filed a grievance regarding his termination and the matter proceeded to arbitration as well. Contrasting the roles of the two CMHA officers, the arbitrator reinstated Det. Ovalle, finding that Det. Ovalle did not participate in the illegal search of the apartment and that Tamblyn Stanley's account of excessive use of force was not credible. More importantly, the arbitrator found that Det. Ovalle did not engage in dishonest conduct during the investigation of the incident. Consequently, the arbitrator reinstated Det. Ovalle and imposed a 30-day suspension instead. This court affirmed the trial court's decision that affirmed the arbitration award. Cuyahoga Metro. Hous. Auth. v. FOP, Labor Council, Inc. , 8th Dist. Cuyahoga No. 104319, 2017-Ohio-190, 2017 WL 237821. In affirming the trial court's judgment denying CMHA's motion to vacate the arbitration award, this court reasoned as follows:

CMHA raised issues of dishonesty throughout the arbitration proceedings and the arbitrator addressed these allegations specifically. The arbitrator found that Detective Ovalle did not engage in dishonest conduct . The portion of the arbitration award detailing the arbitrator's findings that Detective Ovalle did not engage in conduct that would constitute dishonesty is lengthy and thorough. CMHA attempted to show that Detective Ovalle lied during interviews he gave regarding the Stanley and Moore incidents. The arbitrator found that Detective Ovalle was not dishonest , and that his version of events was more credible than Stanley's. The arbitrator found that Stanley's allegations against Detective Ovalle changed over time. She initially reported that Detective Ovalle swept her legs out from under her, causing her to fall. She later said Detective Ovalle pushed her down to the ground. The arbitrator noted that Detective Ovalle's description of his interaction with Stanley was consistent. The arbitrator found that Detective Ovalle was more credible. Credibility determinations are primarily for the factfinder to make. This court cannot review the merits of the factual determinations made by the arbitrator. Cleveland Police Patrolmen's Assn. v. Cleveland , 107 Ohio App.3d 248, 257, 668 N.E.2d 548 (8th Dist. 1995). Further, Moore's version of events fit more closely with Detective Ovalle's statements and testimony than Stanley's.

(Emphasis added.) Cuyahoga Metro. Hous. Auth. at ¶ 14.

{¶ 60} Although the court was constrained by its inability to review the factual determinations made by the arbitrator, it nevertheless quoted the public policy enunciated by the Supreme Court in Jones and noted that in identifying "a strong, well-recognized public policy * * * that precluded the reinstatement of officers who falsified reports," Rist was "representative of a line of cases demonstrating a strong public policy against the retention of individuals as police officers who engage in acts of dishonesty in their official capacity." Id. at ¶ 13.

{¶ 61} The majority in this case concludes that because the court in Cuyahoga Metro. Hous. Auth. did not address or analyze any alleged dishonesty by Det. Ovalle, it did not adopt or apply the relevant public policy. This conclusion is problematic. The court did not affirm the arbitrator's award because it did not find a well-defined and dominant public policy prohibiting the reinstatement of officers who commit acts of dishonesty in their official capacity. On the contrary, the court affirmed the arbitrator's award, at least in part, because Det. Ovalle had not committed acts of dishonesty that would have made the arbitrator's award violate public policy.

{¶ 62} In contrast to the arbitrator's finding regarding Det. Ovalle, the arbitrator in the instant case found Wohlheter to have engaged in repeated acts of dishonesty yet reinstated him. This writer acknowledges that the narrow public policy exception does not provide a broad judicial power to set aside arbitration awards as against public policy. The facts of this case are certainly sufficiently compelling to vacate the arbitrator's award reinstating Wohlheter. The continued employment of any such officer only serves to erode fragile public trust and confidence in the law enforcement officers, who are entrusted to the unique front line position of public trust. Ohio's courts have stressed the importance of maintaining the public's confidence by ensuring the integrity of law enforcement officers. Examining the laws and legal precedents, it is found that Ohio has a well-defined and dominant public policy favoring an honest police force made up of officers who command the public trust, and laws and court precedents against the reinstatement of a police officer who has committed acts of dishonesty in his official capacity.

{¶ 63} I agree with the majority's determination that the arbitrator here had the authority to act. No arbitrator possesses unlimited authority to exceed clearly established public policy. This award is contrary to public policy. It should not be enforced. For that reason, I would reverse the trial court's judgment denying CMHA's motion to vacate the arbitration award reinstating Wohlheter.

      Ovalle's termination was modified by an arbitrator to a 30-day suspension with back pay. The trial court confirmed the arbitrator's award, and this court affirmed. See Cuyahoga Metro. Hous. Auth. v. FOP, Ohio Labor Council, Inc. , 8th Dist. Cuyahoga No. 104319, 2017-Ohio-190, 2017 WL 237821, appeal not accepted , 150 Ohio St.3d 1452, 2017-Ohio-8136, 83 N.E.3d 938 (2017).