author: SINGER, J.

text:
    LUBLINSUSSMAN GROUP LLP, Appellant v. Terri S. LEE, Appellee
    No. L-17-1077
    Court of Appeals of Ohio, Sixth District, Lucas County.
    Decided: February 23, 2018
    John J. McHugh, III, Toledo, for appellant.
    Christopher F. Parker, Toledo, for appellee.
    DECISION AND JUDGMENT
   SINGER, J.

{¶ 1} Appellant, LublinSussman Group, LLP, appeals the March 16, 2017 judgment of the Lucas County Court of Common Pleas granting summary judgment in favor of appellee, Terri Lee. For the reasons that follow, we affirm, in part, and reverse, in part.

Assignments of Error

{¶ 2} Appellant sets forth the following assignments of error:

1. The trial court erred prejudicially in entering summary judgment dismissing LublinSussman Group's breach of contract claim on its Second Amended and Restated Partnership Agreement (Partnership Agreement).
2. The trial court erred prejudicially in entering summary judgment in favor of Terri S. Lee on her wrongful termination and breach of contract claims arising under the Partnership Agreement.

Factual Background

{¶ 3} Appellant is an accounting firm which was originally formed as a partnership in August 1997. On October 1, 2010, an amended partnership agreement ("partnership agreement") was made "to restate the written partnership agreement" and "to continue to conduct their professional practice." Five partners entered into the partnership agreement, including appellee and Lee D. Wunschel.

{¶ 4} In September 2014, appellant held a meeting which was attended by all of the partners except appellee, who was not invited. The partners present at the meeting voted unanimously to remove appellee as a partner. Wunschel, in his affidavit, states the partners considered and acted upon the following facts in reaching the decision to remove appellee:

a) [Appellee]'s performance over time did not keep pace with the increased responsibilities of a partner in [appellant];
b) [Appellee] was consistently late in performing and delivering audit reports for [appellant's] clients, especially the State of Ohio;
c) [Appellee] was aware that a moratorium had been placed by the State of Ohio on assignments for [appellant], which was attributed to her tardiness in delivering reports, yet failed to notify [appellant] of this action, or to request assistance in curing the delays;
d) [Appellee] was regularly late in providing and reviewing internal financial statements for [appellant];
e) [Appellee] defaulted on training and development of [appellant] staff and employees, even though she had volunteered to assume such responsibility;
f) [Appellee]'s performance in business development was less than adequate;
g) [Appellee]'s performance in personal leadership inside [appellant] was unsatisfactory;
h) [Appellee] failed to make any significant improvement in output or development performance after adverse reviews in May, 2014, with partners Thomas Jaffe and me; and,
i) [Appellee] appeared to have determined that she would seek employment elsewhere after the September 30 fiscal year end when she failed to volunteer to accept responsibility for coordinating the 2014 [appellant] peer review, which is a triennial requirement of the Accountancy Board of Ohio and the AICPA.

{¶ 5} On September 17, 2014, appellant gave appellee written notice she was removed as a partner, with the effective date of the removal being November 16, 2014.

After she was removed, appellee started her own accounting practice and began servicing some of appellant's past clients. Appellant claimed this action subjected appellee to certain provisions of the partnership agreement, such that appellant concluded appellee owed the partnership $201,907. Appellant alleged the amount was due to an "excess of clients over retirement value account" valued at $62,137, a "deficit accrual basis capital" valued at $137,770 and, an "accounts receivables due and owing" valued at $3,000.

{¶ 6} Appellant sought to recover the amount owed by appellee through informal negotiations, however, the negotiations were unsuccessful and appellant filed its complaint for breach of contract on April 28, 2015.

{¶ 7} Appellee answered the complaint and filed a four-count counterclaim. In Count 1 of the counterclaim, she alleged she was wrongfully expelled as a partner. In Count 2, appellee alleged appellant and the remaining partners breached their fiduciary duties when they expelled her from the partnership. In Count 3, she alleged appellant improperly exercised a right of set-off which was not permitted by the partnership agreement. In Count 4, appellee sought a declaration that any provision of the partnership agreement that treated her involuntary expulsion as a voluntary withdrawal was unenforceable. Appellee sought the balances due from her accrual basis capital ("ABC") account and retirement value ("RV") account without set-off. She also demanded her final three draw installments, which totaled $16,500.

{¶ 8} On January 15, 2016, appellant moved for summary judgment on its claim for breach of contract, as well as on appellee's counterclaims. Appellee opposed the motion and moved for summary judgment on her claims. On August 3, 2016, the trial court entered partial summary judgment finding against appellant on its breach of contract claim and in favor of appellee on her wrongful termination and breach of contract claims. Appellee's other claims were deemed moot.

{¶ 9} The trial court only entered partial summary judgment because it did not grant appellee's demand for her final three account draws. Appellant appealed. The appeal was dismissed for want of a final appealable order. See LublinSussman Group, LLP v. Lee , 6th Dist. Lucas No. L-16-1206 (Oct. 27, 2016).

{¶ 10} After remand, appellee amended her counterclaim to eliminate the demand for the final draws. The summary judgment motions were resubmitted for final decision. On March 16, 2017, the trial court granted summary judgment in favor of appellee consistent with its previous judgment, concluding as follows:

[Appellant]'s claim for breach of contract, as well as [appellee]'s counterclaims, can be decided as a matter of law by this Court under Civ.R. 56. As described above, [appellee] is first entitled to summary judgment on [appellant]'s claim for breach of contract. Furthermore, [appellee] is entitled to summary judgment on her counterclaim against [appellant] for wrongful termination, and [appellee]'s further counterclaims for breach of fiduciary duties and declaratory judgment are moot. Given that [appellee]'s removal/termination from the partnership was an "involuntary withdrawal" under the Agreement, she is also entitled to summary judgment on her counterclaim against [appellant] for breach of contract. [Appellee] is therefore entitled to the value of her ABC and RVA accounts in the amounts of $25,080.83 and $10,006.00, respectively.

{¶ 11} Appellant timely appealed.

Standard of Review

{¶ 12} Pursuant to Civ.R. 56, the moving party bears the initial burden of informing the trial court of the basis for the motion and presenting evidence in support thereof. Vahila v. Hall , 77 Ohio St.3d 421, 429-30, 674 N.E.2d 1164 (1997) ; Dresher v. Burt , 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). Summary judgment will be granted when there remains no genuine issue of material fact and, when construing the evidence most strongly in favor of the non-moving party, reasonable minds can only conclude that the moving party is entitled to judgment as a matter of law. Civ.R. 56(C). Accord Lopez v. Home Depot, USA, Inc. , 6th Dist. Lucas No. L-02-1248, 2003-Ohio-2132, 2003 WL 1962360, ¶ 7.

{¶ 13} A trial court must deny a motion for summary judgment where conflicting evidence exists and alternative reasonable inferences can be drawn. Pierson v. Norfork S. Corp. , 11th Dist. Ashtabula No. 2002-A-0061, 2003-Ohio-6682, 2003 WL 22931361, ¶ 36. The issue is "whether the evidence presents sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby , Inc. , 477 U.S. 242, 251-252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

{¶ 14} We review a grant of summary judgment de novo. Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).

First Assignment of Error

{¶ 15} Appellant asserts the trial court erred in granting summary judgment and dismissing its breach of contract claim because, based on the express language of the partnership agreement, appellee breached the partnership agreement and should have been treated as if she voluntarily withdrew from the partnership. Appellee counters no error occurred, as she did not breach the partnership agreement because she was involuntarily removed as a partner.

{¶ 16} Generally, a breach of contract occurs when (1) "a party demonstrates the existence of a binding contract or agreement"; (2) "the non-breaching party performed its contractual obligations"; (3) "the other party failed to fulfill its contractual obligations without legal excuse"; and (4) "the non-breaching party suffered damages as a result of the breach." Ngo v. Paramount Care, Inc. , 6th Dist. Lucas No. L-05-1359, 2006-Ohio-3874, 2006 WL 2105238, ¶ 11.

{¶ 17} "In cases where the facts are undisputed, and the only question to be resolved is whether a breach of contract occurred, a question of law exists for the court to decide." Bank of New York Mellon v. Lewis , 6th Dist. Erie No. E-13-051, 2014-Ohio-5599, 2014 WL 7229448, ¶ 81. "However, when there is a dispute as to whether the parties' respective actions are sufficient to satisfy the terms of the contract," id. , or "[w]hen a court finds an ambiguity in the contract language," a question of fact is presented and extrinsic evidence may be considered. Savoy Hosp., LLC v. 5839 Monroe St. Assocs., LLC , 6th Dist. Lucas No. L-14-1144, 2015-Ohio-4879, 2015 WL 7572088, ¶ 31.

{¶ 18} To determine whether a breach of contract occurred in this case, we first must review the relevant language of the partnership agreement.

{¶ 19} The construction of a written agreement is a matter of law for the court. Alexander v. Buckeye Pipe Line Co. , 53 Ohio St.2d 241, 374 N.E.2d 146 (1978), paragraph one of the syllabus. A contract must be examined as a whole, and the court presumes the intent of the parties is reflected in the language.

Kelly v. Med. Life Ins. Co. , 31 Ohio St.3d 130, 509 N.E.2d 411 (1987), paragraph one of the syllabus. Words in a contract will be given their plain and ordinary meaning unless "manifest absurdity results, or unless some other meaning is clearly evidenced from the face or overall contents of the instrument." Alexander at paragraph two of the syllabus. Moreover, the court must give effect to the words used in the contract, and not delete or insert words. Cleveland Elec. Illum. Co. v. Cleveland , 37 Ohio St.3d 50, 53, 524 N.E.2d 441 (1988).

{¶ 20} When the language in a contract is clear and unambiguous, a court may look no further than the writing itself to ascertain the intent of the parties. Alexander at paragraph two of the syllabus. On the other hand, contractual language is ambiguous where its meaning cannot be determined from the four corners of the agreement or where the language is susceptible of two or more reasonable interpretations. Covington v. Lucia , 151 Ohio App.3d 409, 2003-Ohio-346, 784 N.E.2d 186, ¶ 18 (10th Dist.).

{¶ 21} When there is an ambiguity in the language of a contract, the court first looks to extrinsic evidence to determine the parties' intent. Skivolocki v. E. Ohio Gas Co. , 38 Ohio St.2d 244, 246, 313 N.E.2d 374 (1974), paragraph one of the syllabus; Cline v. Rose , 96 Ohio App.3d 611, 615, 645 N.E.2d 806 (3d Dist. 1994). Extrinsic evidence may indicate "the circumstances which surrounded the parties at the time [the agreement] was made, the object intended to be accomplished, and the construction which the acts of the parties show they gave to their agreement." Mosier v. Parry , 60 Ohio St. 388, 401, 54 N.E. 364 (1899), paragraph one of the syllabus. However, when extrinsic evidence does not clarify the meaning of the contract, the court applies the secondary rule of contract construction and strictly construes the ambiguous language against the drafter of the contract. Reida v. Thermal Seal , 10th Dist. Franklin No. 02AP-308, 2002-Ohio-6968, 2002 WL 31819831, ¶ 29. See also Graham v. Drydock Coal Co. , 76 Ohio St.3d 311, 314, 667 N.E.2d 949 (1996).

{¶ 22} Here, the relevant language of the partnership agreement is set forth in Paragraphs 11, 18 and 19, as follows:

11. Determining Accrual Basis Capital Accounts of Partners:
* * *
(3) Liability for amounts due to a withdrawn partner or partners will not be considered except where a partner enters into competition with the partnership within 24 months of a voluntary withdrawal. In that instance, the withdrawing partner will be charged for and will be liable for his current earnings percentage of the total outstanding retirement obligation of the partnership to all withdrawn partners at the time of withdrawal. * * *
18. Dissolution Because of Withdrawal * * *:
A. Withdrawal: Any partner may elect to withdraw from the partnership upon giving the other partners 60 days prior written notice as provided in Paragraph 24I.
(1) Removal of a Partner: A partner shall not be subject to removal as a partner except by a unanimous vote of the remaining partners. It shall be the policy of the partnership that except in unusual cases (such as material inability, incapability of performing services adequately to the satisfaction of the other partners and the clients, or creating discord among the partners of employees or repeated inadequate service or performance as a partner[ ) ], in the good faith opinion of the partners, no partner shall be removed otherwise than for (a)
gross misconduct, loss of professional license, conviction of a crime of such character as seriously injures the general reputation of the partnership or renders the partner incapable of reasonably performing his duties as a partner of the partnership or (b) willful failure or neglect (after written notice from the partnership) reasonably to devote substantially his full time and energies in good faith to the welfare of the partnership. However, if there is a unanimous vote of all the partners (excluding the partner in question) such partner shall be subject to removal. Such a removal, being an involuntary withdrawal, shall be deemed an election by the partner to withdraw pursuant to Paragraph 19 hereof and a withdrawal under this Paragraph 18. Written notice of such removal shall be given to the affected partner at least 60 days prior to removal. * * *
C. Valuation of Partnership Interest: Subject to Paragraph 19, the value of the interest of a withdrawing * * * partner, shall be valued as of the end of the calendar month closest to the effective date of dissolution, namely, the prior month if such date is earlier than the first 15 days of the month[,] or the end of the next month, if such date is on the 15th or later day of a calendar month and shall be the sum of:
(1) His ABC account;
(2) His Retirement Value Account.* * *
19. Withdrawal:
A. Upon withdrawal of a partner, the partnership shall liquidate the withdrawing partner's interest in the partnership at the price set forth in Paragraph 18C except in the case of a partner who voluntarily withdraws and goes into competition with the partnership. In that instance, his Accrual Basis Capital Account will be reduced by charging his current earning percentage to the total outstanding retirement obligation to all retired partners at that time, as stated in Paragraph 11A(3).
B. Withdrawal and Continuation in Practice: In the event a withdrawing partner continues in the practice of public accounting, he will be permitted to take the accounts (client) he services. However, if such partner should voluntarily withdraw, he shall receive his Retirement Value Account only to the extent of the value of the accounts taken with him (as described at Subparagraph (2)b which follows). This paragraph is intended to clarify the mechanics by which a withdrawing partner takes accounts and the valuation thereof and to distinguish between voluntary and involuntary withdrawal.
(1) The partner shall pay the partnership the average of the three (3) years' billing to all clients taken based on the partnership's three (3) most recently completed fiscal years preceding the date of withdrawal.* * * In addition, 120 days after withdrawal, the withdrawing partner shall purchase all outstanding accounts receivable on accounts he takes. The total value of business and accounts receivable will be used to reduce amounts due the withdrawing partner in accordance with Paragraph 18C of this Agreement. The provisions of this paragraph will apply to all accounts transferred during the two-year period commencing on the day after the effective withdrawal date of the partner. * * *

{¶ 23} Appellant argued, in support of summary judgment, the intent in drafting the language in Paragraph 18.A.(1) was to protect the remaining partners in the event a partner was removed and proceeded to take partnership clientele to his or her new practice. Specifically, appellant asserted that in that instance "[s]uch a removal, being an involuntary withdrawal, shall be deemed an election[,]" and this clause of the partnership agreement operated to treat the removed partner as if she had voluntarily withdrawn. The word "elect" is used immediately above, in Paragraph 18.A., and in that provision it states that "[a]ny partner may elect to withdraw from the partnership."

{¶ 24} Appellant, consistent with this construction, treated appellee as if she had voluntarily withdrawn when she was removed as a partner. According to appellant, appellee was then subject to Paragraphs 11.A.(3) and 19.B. because she proceeded to take clients and compete with the partnership. As a result, her ABC account was reduced, which charged "current earning percentage to the total outstanding retirement obligation to all retired partners at that time[.]" According to appellant, appellee was also then responsible for paying "the partnership the average of three (3) years billings to all clients taken[,]" as required under Paragraph 19.B.(1).

{¶ 25} Appellee opposed the summary judgment and supported her position regarding the breach of contract claim by asserting that she did not draft the partnership agreement, and the removal provision of Paragraph 18.A.(1) was explained to her prior to entering into the partnership agreement, "to protect partners against unfair removal." Appellee argued she did not voluntarily quit or withdraw as a partner. Appellee asserted any reading of Paragraph 18 which required her, as a removed partner, to be treated as if she voluntarily withdrew from the partnership was "inequitable, unfair, ambiguous, and * * * unenforceable[.]"

{¶ 26} The trial court found, in granting summary judgment to appellee that paragraph 19 of the partnership agreement prevented appellee's removal from being considered a "voluntary withdrawal" from the partnership, and Paragraph 18.A.(1) did not control appellee's withdrawal from the partnership because the partnership was not dissolved.

{¶ 27} Our review of the record shows both parties acknowledged appellee executed the partnership agreement. Moreover, we find the partnership agreement is a binding contract. An examination of the language in Paragraphs 11 and 19 of the partnership agreement reveals the language is clear and unambiguous. More particularly, in Paragraph 19.B., there is a definite distinction made between a partner who voluntarily withdraws and one who involuntarily withdraws. That relevant section reads "[t]his paragraph is intended to clarify the mechanics by which a withdrawing partner takes accounts and the valuation thereof and to distinguish between voluntary and involuntary withdrawal." As this language of the partnership agreement is unambiguous, we must enforce it, not interpret it.

{¶ 28} With respect to Paragraph 18, it is entitled "Dissolution Because of Withdrawal * * * of a Partner." However, only subparagraph B of Paragraph 18 discusses the dissolution of the partnership. Paragraph 18.A.(1), C. and D. make no mention of dissolution. The language of Paragraph 18.A.(1) sets forth the manner in which a partner may withdraw as well as the method by which a partner can be removed. The language of Paragraph 18.C. describes how to value the partnership interest of a withdrawing (or disabled or deceased) partner, while the language of Paragraph 18.D. characterizes certain payments and monies for tax purposes. We find that Paragraph 18 addresses more than merely the dissolution of the partnership, thus the title of Paragraph 18 is not dispositive of the entire scope of information included in that paragraph. We therefore find Paragraph 18.A.(1) applies to situations, where, as here, a partner must withdraw from the partnership due to removal, yet the partnership is not dissolved.

{¶ 29} The relevant portion of Paragraph 18.A.(1) states "[s]uch a removal, being an involuntary withdrawal, shall be deemed an election to withdraw pursuant to Paragraph 19 hereof and a withdrawal under this Paragraph 18." We find, based on our de novo review and giving effect to the words used and not deleting or inserting words, that this language is ambiguous. The phrase "shall be deemed an election to withdraw" followed by "[s]uch a removal, being an involuntary withdrawal," is unclear and creates a conflict. Moreover, the term "voluntary withdrawal" is not used in Paragraph 18.A.(1), but Paragraph 19 is referenced, which does use the term "voluntary withdrawal." Paragraph 18.A.(1) also refers to "this Paragraph 18," which employs the term "elect to withdraw" but not "voluntary withdrawal." Since the language of Paragraph 18.A.(1) is conflicting and reasonably susceptible to more than one interpretation, we must look to extrinsic evidence to discover the parties' intent.

{¶ 30} An examination of the record shows there is no direct evidence of the intent of the parties. Appellant offered evidence which implied that a removed partner would be treated as if the partner had voluntarily withdrawn, under Paragraph 18.A.(1) of the partnership agreement. In contrast, appellee presented evidence that she did not voluntarily quit or withdraw as a partner and the removal provision in Paragraph 18.A.(1), as explained to her, "was established to protect partners against unfair removal."

{¶ 31} We find the extrinsic evidence submitted by the parties does not clarify the meaning of Paragraph 18.A.(1) of the partnership agreement. Thus, we must strictly construe the ambiguous language of the partnership agreement against the drafter. Appellant drafted the partnership agreement. Construing the language in Paragraph 18.A.(1) against appellant, we find the removal of a partner to be an involuntary withdrawal from the partnership.

{¶ 32} Upon review of the record, the evidence is undisputed that appellee was removed as a partner. As such, appellee involuntarily withdrew from the partnership. Pursuant to Paragraph 19.A., "[u]pon withdrawal of a partner, the partnership shall liquidate the withdrawing partner's interest in the partnership at the price set forth in Paragraph 18.C. * * *." Paragraph 18.C. provides the value of the interest of the withdrawing partner (appellee) is the sum of her ABC account and her RV account. There is no provision in the partnership agreement to reduce the ABC account or RV account when the involuntary withdrawal of a partner occurs. Therefore, neither Paragraph 11.A.(3) or the portion of Paragraph 19.B. which references the retirement value account applies.

{¶ 33} The record further shows after appellee involuntarily withdrew from the partnership, she did engage some of appellant's clients in her new practice. Paragraph 19.B. states, "[i]n the event a withdrawing partner continues in the practice of public accounting, he will be permitted to take the accounts (client) he services. * * * (1) The partner shall pay the partnership the average of the three (3) years billing to all clients * * *. In addition, 120 days after withdrawal, the withdrawing partner shall purchase all outstanding accounts receivable on accounts he takes." Appellee owes this sum to appellant, and pursuant to Paragraph 19.B.(1), "[t]he total value of business and accounts receivable will be used to reduce amounts due the withdrawing partner in accordance with Paragraph 18C of this Agreement." Thus, appellee is entitled to the full amounts of her ABC and RV accounts, valued as of November 30, 2014, pursuant to Paragraph 18.C., less the amounts she owes appellant for the clients she took, as well the outstanding accounts receivable on the accounts she took. The trial court shall determine the exact amounts on remand.

{¶ 34} Based upon the foregoing, we find appellee did breach the partnership agreement to the extent that she owes appellant certain monies pursuant to Paragraph 19.B. Accordingly, appellant's first assignment of error is well-taken, in part, and not well-taken, in part.

Second Assignment of Error

{¶ 35} In the second assigned error, appellant asserts the court erred in entering summary judgment in favor of appellee on her claims for wrongful termination and breach of contract. Appellee argues the court did not err because she was not properly notified of or invited to the "special meeting" or given a chance to challenge her unfair removal.

{¶ 36} With respect to the wrongful termination claim, a review of the record shows appellant moved for summary judgment as to this claim and supported its position with averments in Lee D. Wunschel's affidavit concerning appellee's performance as a partner. Appellee also moved for summary judgment as to her wrongful termination claim, but offered no evidence in support of this claim. Since appellant presented evidence that appellee was not wrongfully terminated, and appellee failed to provide evidence that she was wrongfully terminated, appellant met its summary judgment burden as to this claim while appellee failed to meet her burden. See Civ.R. 56, Vahila v. Hall , 77 Ohio St.3d 421, 429-30, 674 N.E.2d 1164 and Dresher v. Burt , 75 Ohio St.3d 280, 293, 662 N.E.2d 264. Therefore, appellant was entitled to summary judgment on appellee's wrongful termination claim, and appellee was not entitled to summary judgment on her wrongful termination claim. Accordingly, appellant's second assignment of error is well-taken as to this claim.

{¶ 37} With respect to the breach of contract claim, a review of the record shows appellee met her burden of showing appellant breached the partnership agreement by not paying her interest in the partnership upon her withdrawal, as required under Paragraph 19.A. It follows that appellee was entitled to summary judgment on her breach of contract claim. Accordingly, appellant's second assignment of error is not well-taken as to this claim.

Conclusion

{¶ 38} The judgment of the Lucas County Court of Common Pleas is affirmed, in part, and reversed, in part. The matter is remanded to proceed in a manner consistent with this decision. Appellant and appellee are ordered to split the costs of this appeal pursuant to App.R. 24.

Judgment affirmed, in part, and reversed, in part.

Mark L. Pietrykowski, J.

CONCUR.

Christine E. Mayle, P.J.

CONCURS IN PART AND DISSENTS IN PART.

MAYLE, P.J.

{¶ 39} I concur with the majority's findings that the appellee breached the partnership agreement and that the appellee is not entitled to summary judgment on her wrongful-termination counterclaim. Unlike the majority, however, I believe that the partnership agreement is unambiguous in that it explicitly provides that removal by unanimous partner vote is deemed "an election by the partner to withdraw," which is synonymous with a "voluntary withdrawal," for purposes of calculating the withdrawing partner's ABC and RV accounts and corresponding set-offs under Paragraphs 18 and 19 of the contract. Accordingly, I dissent to the extent that I would reverse the trial court's judgment and enter judgment for appellant on its breach-of-contract claim and remand for a full determination of damages as required by Paragraphs 18 and 19 (first assignment of error), and reverse and enter judgment for appellant on both counterclaims (second assignment of error).

{¶ 40} The relevant sentence of Paragraph 18.A.(1) states, in full: "Such a removal [by unanimous vote of all other partners], being an involuntary withdrawal, shall be deemed an election by the partner to withdraw pursuant to Paragraph 19 hereof and a withdrawal under this Paragraph 18 ." (Emphasis added.) The majority finds this provision ambiguous and, absent extrinsic evidence of the parties' intent, interprets the provision against the drafter (appellant) and concludes that a removal by unanimous partner vote is an involuntary withdrawal. That interpretation, however, renders the italicized portion of Paragraph 18.A.(1) meaningless. "When interpreting a contract, we will presume that words are used for a specific purpose and will avoid interpretations that render portions meaningless or unnecessary." Wohl v. Swinney , 118 Ohio St.3d 277, 2008-Ohio-2334, 888 N.E.2d 1062, ¶ 22. "In determining the meaning of the contract, a court must consider all of its parts, and no provision should be wholly disregarded as inconsistent with the other provisions unless no other reasonable construction is possible." Reams v. Reams , 6th Dist. Lucas Nos. L-04-1276 and L-04-1329, 2005-Ohio-5264, 2005 WL 2415936, ¶ 22.

{¶ 41} Rather than rendering a portion of Paragraph 18.A.(1) meaningless, I believe that the court can harmonize the seemingly conflicting provisions of the contract by considering the "plain and ordinary" meaning of the language used in those provisions and thereby give meaning and purpose to all of its parts. Sunoco, Inc. (R & M) v. Toledo Edison Co. , 129 Ohio St.3d 397, 2011-Ohio-2720, 953 N.E.2d 285, ¶ 37 (When interpreting a contract, a court should look to "the plain and ordinary meaning of the language used in the contract unless another meaning is clearly apparent from the contents of the agreement."); see also Reams at ¶ 22, quoting State Auto. Ins. Co. v. Childress , 1st Dist. Hamilton No. C-960376, 1997 WL 20936 (Jan. 15, 1997) (" '[c]onstruction of the contract should attempt to harmonize all of the provisions rather than create conflicts in them' * * *.").

{¶ 42} In my view, the beginning portion of the relevant sentence of Paragraph 18.A.(1)-"Such a removal [by unanimous vote of all other partners], being an involuntary withdrawal * * *"-simply recognizes the reality of the situation absent an agreement to the contrary: i.e., the partner is being involuntarily removed from the partnership. "Involuntary," as relevant here, means "dictated by authority or circumstance: COMPULSORY." Webster's Third New International Dictionary of the English Language Unabridged 1191 (1961). The provision then specifies that, notwithstanding the otherwise "involuntary" nature of the withdrawal, the parties agree to treat the withdrawal in a different manner. That is, the parties agreed that such an involuntary withdrawal "shall be deemed" to be (1) "an election by the partner to withdraw pursuant to Paragraph 19 hereof" and (2) "a withdrawal under this Paragraph 18."

{¶ 43} Looking first to Paragraph 18, that paragraph provides: "A. Withdrawal: Any partner may elect to withdraw from the partnership upon giving the other partners 60 days prior written notice * * *." (Emphasis added.) And although Paragraph 19 does not use the exact phrase that is used in Paragraph 18.A.(1) (i.e., "an election by the partner to withdraw"), it does detail the financial implications for a partner who "voluntarily withdraws and goes into competition with the partnership." (Emphasis added.) Reading the contract as a whole and harmonizing its parts, it appears that the normal mechanism for a "voluntary withdrawal" under Paragraph 19 is the procedure outlined in Paragraph 18.A.: i.e., the voluntarily withdrawing partner must provide 60-days' prior written notice that he or she "elect[s] to withdraw" from the partnership. In other words, an "election to withdraw" and a "voluntary withdrawal" are one and the same. Moreover, the plain and ordinary meaning of the words "voluntary" and "elect," when used in this context, are virtually synonymous. The word "voluntary" means "proceeding from the will : produced in or by an act of choice," and "elect," when used as a transitive verb, means "to make a selection of: CHOOSE" or "to choose (a course of action) esp. by preference: decide upon." Webster's Third New International Dictionary of the English Language Unabridged 731, 2564 (1961).

{¶ 44} Thus, when the various provisions of Paragraphs 18 and 19 are read together according to their plain and ordinary meaning, there is no conflict or ambiguity: in Paragraph 18.A.(1), the parties agreed that the removal of a partner by unanimous vote of the other partners, which would otherwise be an "involuntary withdrawal," shall be deemed an "election by the partner to withdraw"-which is synonymous with a "voluntary withdrawal"-for purposes of calculating the withdrawing partner's ABC and RV accounts and corresponding set-offs under Paragraphs 18 and 19 of the contract.

{¶ 45} Accordingly, I would reverse and enter judgment for appellant on its breach-of-contract claim and remand for a full determination of damages as required by Paragraphs 18 and 19 (first assignment of error), and reverse and enter judgment for appellant on both counterclaims (second assignment of error).


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellant, v. Michelle MINCEY, Defendant-Appellee.
    NO. C-160565
    Court of Appeals of Ohio, First District, Hamilton County.
    Date of Judgment Entry on Appeal: February 23, 2018
    Joseph T. Deters, Hamilton County Prosecuting Attorney, Ronald Springman and Sean Donovan, Assistant Prosecuting Attorneys, for Plaintiff-Appellant,
    Michaela M. Stagnaro, Cincinnati, for Defendant-Appellee.
    OPINION.
   Miller, Judge.

{¶ 1} After her first trial ended in a mistrial, and following a second trial, a jury found Michelle Mincey guilty of felonious assault for being complicit in throwing sulfuric acid on Shailah Robinson's face and body. The trial court sentenced Mincey to the maximum term of eight years in prison. We affirm.

The State's Case

{¶ 2} Mincey's teenage daughters, Deajah and Shay, were embroiled in an on-going dispute with Robinson's sister, Tynia Jones, and others culminating in a large street fight. Roughly an hour before this melee, Deajah fought with one of Tynia's friends, Tonya Miller. Tynia witnessed the earlier fight, and cell phone video of the fight was admitted at trial.

{¶ 3} The street fight initially involved Robinson, Tynia, Deajah, Shay and a few other women and girls. Mincey, along with her sister Denna and their cousin, Latressa Conley, ran out of Mincey's home and joined in. Mincey carried a stun gun, Conley a spray bottle of isopropyl alcohol, and Denna a glass jar of a concentrated sulfuric acid solution. According to Robinson, in the midst of the fight, Mincey pointed at Robinson and said, "It's that bitch right there," prompting Denna to throw acid onto Robinson's face. As Robinson tried to wipe the acid from her face, Denna threw the remainder of the jar's contents onto Robinson's body.

{¶ 4} Tynia corroborated Robinson's testimony, and added that Denna's first throw was underhanded, and the second, overhanded. Robinson testified that the acid made her feel like her body was "on fire," and that her pain level on a scale of 1-to-10 was "over 10." She was hospitalized for two-and-a-half weeks and still experiences pain daily.

{¶ 5} Officer Kurtz responded to the scene. Mincey gave him permission to search her house. Kurtz encountered Denna on the second floor as she exited from the bathroom, appearing to have just showered. The officer found a bottle of "Liquid Fire" drain cleaner in Mincey's home. It was later discovered that there were burns on Denna's hand and back.

{¶ 6} Dana Greely, a crime lab technician, tested the Liquid Fire and remnants of acid collected from the scene. Greely testified that Liquid Fire is a sulfuric acid solution, and that the liquid from the crime scene was also a sulfuric acid solution. She concluded that Denna's shirt and Robinson's clothing had been burned with sulfuric acid. Greely could not say whether the acid thrown on Robinson was the Liquid Fire found in Mincey's home.

Mincey's Defense

{¶ 7} In her first trial, Mincey had expert witness Larry Dehus appointed at her request to test the evidence found at the scene and the Liquid Fire. Dehus's report contained conclusions very similar to Greely's. She did not call Dehus as a witness in either trial. Prior to her second trial, Mincey moved the trial court to appoint a second expert witness, who Mincey claimed would possibly be able to testify that the Liquid Fire from her home was not the acid thrown on Robinson. Her motion was denied.

{¶ 8} Mincey's defense centered on casting doubt on the identity of Denna as the acid-thrower, and Mincey as the one who told Denna to throw the acid on Robinson. The defense argued that Denna could not have carried a jar of acid to the fight because an eye-witness testified that Denna had been physically fighting before the acid was thrown. Denna admitted that there were burns on her hands and back, but explained that the burn on her hand was from an oven and that the burn on her back occurred when someone behind her at the fight threw the acid at Robinson.

Analysis

{¶ 9} Admission of the cell phone video. In her first assignment of error, Mincey contends that the trial court erred when it admitted into evidence the cell phone video of the earlier fight between Mincey's daughters and Tonya Miller. Mincey raises three arguments: the video (1) was not properly authenticated; (2) was irrelevant and/or unduly prejudicial; and (3) constituted impermissible "other acts" evidence. None of these arguments is meritorious.

{¶ 10} We review the trial court's admission of the video for an abuse of discretion. See State v. Sage , 31 Ohio St.3d 173, 510 N.E.2d 343 (1987), paragraph two of the syllabus. An abuse of discretion is more than a mere error in judgment; it suggests that the court acted in an unreasonable, arbitrary, or unconscionable manner. State v. Adams , 62 Ohio St.2d 151, 157-158, 404 N.E.2d 144 (1980).

{¶ 11} "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Evid.R. 901(A) ; Great Seneca Fin. v. Felty , 170 Ohio App.3d 737, 2006-Ohio-6618, 869 N.E.2d 30, ¶ 9 (1st Dist.). Tynia witnessed the earlier fight. She testified that the video was a fair and accurate depiction of the fight. This was sufficient foundation to admit the video. Midland Steel Prods. Co. v. U.A.W. Local 486 , 61 Ohio St.3d 121, 129, 573 N.E.2d 98 (1991).

{¶ 12} The video was relevant. "Relevant evidence" is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Evid.R. 401. The question of whether evidence is relevant is "one which the trial court can resolve based on common experience and logic." State v. Lyles , 42 Ohio St.3d 98, 99, 537 N.E.2d 221 (1989). Here, the trial court stated that evidence of the earlier fight provided a possible motive for the later street fight. We find no error in this determination.

{¶ 13} Excluding this video was not required by Evid.R. 403(A). That rule provides, "[a]lthough relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury." See State v. Combs, 62 Ohio St.3d 278, 284, 581 N.E.2d 1071 (1991). Mincey claims that the video was unduly prejudicial because its only purpose was to show that Mincey must have been angry at the girls involved in the earlier fight against her daughters. We fail to see how the probative value of this evidence was substantially outweighed by the danger of unfair prejudice.

{¶ 14} Finally, Mincey contends that the video contained prohibited "other acts" evidence under Evid.R. 404(B). This objection was not raised in the trial court. Mincey has therefore forfeited all but plain error on appeal. See State v. Rogers , 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 3. Forfeited error "is not reversible error unless it affected the outcome of the proceeding and reversal is necessary to correct a manifest miscarriage of justice." Id. On appeal, Mincey has not argued, let alone demonstrated, that "but for" the alleged error the outcome of her trial would have been otherwise, or that reversal is necessary to correct a manifest miscarriage of justice. See Rogers at ¶ 3 ; State v. Harrison, 122 Ohio St.3d 512, 2009-Ohio-3547, 912 N.E.2d 1106, ¶ 61 ; State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804 (1978).

{¶ 15} Mincey's first assignment of error is overruled.

{¶ 16} Expert Witness. In her second assignment of error, Mincey argues that the trial court violated her right to due process by overruling her motion to appoint a second expert witness. According to her proffer, her requested expert, Professor Thomas Ridgway, "would possibly allow elimination" of the Liquid Fire found in her house as the source of the acid that burned Robinson.

{¶ 17} This was Mincey's second request for an expert to test the acid found at the scene. In Mincey's first trial, that ended in a mistrial, the court had appointed expert witness Dehus. Dehus tested the Liquid Fire found in Mincey's home, acid residue found at the scene, and Robinson's and Michelle Mincey's clothing. Dehus's report concluded that the Liquid Fire was a concentrated sulfuric acid solution, that the acid residue was sulfuric acid residue, and that the chemical damage to Robinson's and Denna Mincey's clothing was indicative of sulfuric acid. Dehus could not determine whether the acid found at the scene and on the tested clothing was from the Liquid Fire found in Mincey's home. Dehus did not testify at either trial. The state's expert, Greely, who testified in Mincey's second trial, came to similar conclusions as Dehus after she tested the evidence from the scene. However, according to Mincey, Ridgway would be able to perform more sensitive testing than either Dehus or Greely that could possibly exclude the Liquid Fire as the agent that burned Robinson.

{¶ 18} As a guarantee of due process, indigent defendants are entitled to receive the "raw materials" and the "basic tools of an adequate defense." Ake v. Oklahoma , 470 U.S. 68, 77, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), quoting Britt v. North Carolina , 404 U.S. 226, 227, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971). However, due process, under the Fifth and Fourteenth Amendments to the United States Constitution and Section 16, Article I of the Ohio Constitution, does not require the state to provide an expert to an indigent defendant in the absence of a particularized showing of need. State v. Mason , 82 Ohio St.3d 144, 150, 694 N.E.2d 932 (1998). A defendant must demonstrate "a reasonable probability that an expert would aid in his defense, and that denial of expert assistance would result in an unfair trial." Id., citing Little v. Armontrout , 835 F.2d 1240, 1244 (8th Cir.1997). The mere possibility of aid from an expert is not enough. Id. ; see State v. Broom , 40 Ohio St.3d 277, 283, 533 N.E.2d 682 (1988). We review the trial court's decision whether to appoint an expert witness for an abuse of discretion. See State v. Jenkins , 15 Ohio St.3d 164, 473 N.E.2d 264 (1984), paragraph four of the syllabus.

{¶ 19} Here, Mincey did not demonstrate more than a "mere possibility" that Ridgway would have aided in her defense. Mincey wanted Ridgway to counter the coroner's analyst's results. Her first expert was unable to do so. Both Greely and Dehus came to the same conclusions after testing-i.e. that Liquid Fire contained a concentrated sulfuric acid solution and that the evidence collected from the scene was sulfuric acid. Greely's and Dehus's results were inconclusive as to whether the Liquid Fire was the acid used in the attack. Mincey did not show how more testing would have led to a different result. Her argument in support of a second expert was speculative, raising only the "possibility," and not a "reasonable probability" that yet more testing would yield a result favorable to Mincey. Further, Mincey had an opportunity to adequately cross-examine the coroner's analyst about the lab results, and thereby cast doubt on the analysis or the lab results themselves. And there is no indication in the record that Mincey's first expert was unavailable, had she wished to call her own expert witness.

{¶ 20} Additionally, while the presence of Liquid Fire in Mincey's home was significant, the heart of the state's case was other evidence-primarily eyewitness testimony-connecting Mincey to the crime. Mincey was convicted of complicity for directing her sister to throw the acid on Robinson. Where the acid came from was less important. She therefore cannot show that the trial court abused its discretion and that the failure of the court to appoint a second expert resulted in an unfair trial. We overrule the second assignment of error.

{¶ 21} Prosecutorial Misconduct. In her third assignment of error, Mincey claims that prosecutorial misconduct deprived her of a fair trial. She alleges that the assistant prosecuting attorney committed misconduct by (1) trying his case to the jury during voir dire, (2) introducing cell phone video of the fight, (3) making inaccurate statements during closing argument, and (4) misstating facts in the state's sentencing memorandum.

{¶ 22} The test for prosecutorial misconduct is whether the remarks or actions were improper, and if so, whether they affected the accused's substantial rights. State v. Lott , 51 Ohio St.3d 160, 165, 555 N.E.2d 293 (1990). To constitute reversible error, the alleged misconduct must have deprived the defendant of a fair trial. State v. Diar , 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 140 ; State v. Neeley , 143 Ohio App.3d 606, 621, 758 N.E.2d 745 (1st Dist.2001).

{¶ 23} The admission of the cell phone video was a decision made by the trial court, not the prosecuting attorney. Even if the sentencing memorandum contained inaccurate facts, it was submitted to the court after Mincey had been found guilty. It could not have had an effect on the fairness of Mincey's trial. Therefore, these allegations cannot form the basis for claims of prosecutorial misconduct.

{¶ 24} Next, Mincey makes a general reference in her brief to a few instances where the trial court admonished the prosecuting attorney during voir dire for speaking about the particulars of the case. She has not demonstrated how these statements deprived her of a fair trial. And, upon a review of the record, we hold that they did not.

{¶ 25} Finally, Mincey claims that the prosecuting attorney made several improper statements during closing argument. There were no objections to these statements, and Mincey has not argued or shown plain error on appeal. See Rogers , 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, at ¶ 3 ; Long, 53 Ohio St.2d at 97, 372 N.E.2d 804.

{¶ 26} Mincey's third assignment of error is overruled.

{¶ 27} Jury Charge. In her fourth assignment of error, Mincey argues that the trial court left out an element of "complicity" in its charge to the jury. This presents a question of law that we review de novo. Cincinnati v. Flannery , 176 Ohio App.3d 181, 2008-Ohio-1437, 891 N.E.2d 775, ¶ 11 (1st Dist.).

{¶ 28} In pertinent part, "complicity" is defined in R.C. 2923.03(A)(2) as "no person acting with the kind of culpability required for the commission of an offense shall * * * aid or abet another in committing the offense." The jury was instructed using this exact language. The trial court also instructed the jury that "knowingly" was the mens rea for felonious assault, and properly defined "knowingly." The defense submitted proposed jury instructions on the complicity charge that inserted the mens rea of "knowingly" into the complicity instruction, itself. Mincey contends that, by not inserting the word "knowingly" into its complicity instruction itself, the court left out an element of this crime. It did not.

{¶ 29} The dissent goes beyond the assigned error by discussing the effectiveness of the instruction. Mincey challenges only whether a mens rea instruction was given. It was. The dissent's analysis of the unassigned error suffers from two significant flaws.

{¶ 30} First, the dissent treats the Ohio Jury Instructions ("OJI") as law. OJI is merely nonbinding guidance. State v. Napier , 105 Ohio App.3d 713, 720, 664 N.E.2d 1330 (1st Dist.1995). OJI is " 'the product of a committee of the Ohio Judicial Conference which suggests model instructions, but which have no force or effect as a rule of law. They are merely the suggestions of one or more trial or appellate judges as to what those judges feel is an appropriate instruction.' " Id. at 720-721, 664 N.E.2d 1330, quoting State v. Mitchell , 10th Dist. Franklin No. 88AP-695, 1989 WL 47083 (May 2, 1989) ; see State v. Burchfield 66 Ohio St.3d 261, 263, 611 N.E.2d 819 (1993)

(recognizing that OJI should not be "blindly applied"). The proper inquiry is whether the instruction was proper.

{¶ 31} State v. Skatzes is informative. 104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215. In Skatzes , the Supreme Court of Ohio considered the following instruction given under the former complicity statute, R.C. 2923.04 : " 'Before you can find the defendant guilty, you must find beyond a reasonable doubt that * * * the defendant, acting with the required culpable mental state for the particular offense, * * * conspired with another to commit the offenses.' " Id. at ¶ 58. The court concluded that the instruction was not erroneous because the language tracked the complicity statute and was not ambiguous. Id. The court also held that the "jurors would have understood this instruction to mean that they should apply the culpable mental state for the offense that they found to be the object of the conspiracy." Id.

{¶ 32} The same reasoning applies here. The trial court followed the language of the statute. The culpable mental state was referenced in connection with the felonious assault charge-which was given by the court immediately following the complicity instruction. The jurors would have understood that they should apply "knowingly" to the complicity charge. Thus, the court included all elements in its charge to the jury.

{¶ 33} Second, the dissent's laser focus on the complicity instruction alone is too narrow. After completing the lengthy complicity instruction, the trial court next instructed the jury on felonious assault, including the mens rea. Viewing the instructions as a whole, as required, it is beyond dispute that the jury was instructed that the mens rea for Mincey's complicity charge was the same as the mens rea for felonious assault-"knowingly"-which was given. See State v. Price , 60 Ohio St.2d 136, 398 N.E.2d 772 (1979), paragraph four of the syllabus. ("A single instruction to a jury may not be judged in artificial isolation but must be viewed in the context of the overall charge."). The dissent's insistence that the mens rea be charged differently isn't based in the law.

{¶ 34} Because the jury was instructed on all elements of complicity, we overrule this assignment of error.

{¶ 35} Ineffective Assistance of Trial Counsel. In the fifth assignment of error, Mincey contends that she was denied the effective assistance of trial counsel because counsel failed to object to what Mincey contends were improper remarks by the assistant prosecutor during closing argument. To establish ineffective assistance warranting reversal of a conviction, Mincey must show that counsel's performance was deficient, and that the deficient performance deprived her of a fair trial. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; State v. Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus. She has not done so.

{¶ 36} Mincey asserts that counsel should have objected to a number of statements to the effect that Mincey had been angry all day and that she had been looking for a fight. It is well-established that during closing argument, the prosecution is given wide latitude to convincingly advance its strongest arguments. State v. Phillips, 74 Ohio St.3d 72, 90, 656 N.E.2d 643 (1995). Mincey has not explained how these statements were improper, or deprived her of a fair trial.

{¶ 37} Mincey also claims that the assistant prosecuting attorney misstated the law. Even if this occurred, the trial court correctly informed the jury that "[i]t's the duty of the court to instruct you on the law. That is, to instruct you on the law which you must apply to the facts as you determine them to be in order to arrive at your verdict." Jurors are presumed to follow the court's instructions. Pang v. Minch , 53 Ohio St.3d 186, 195, 559 N.E.2d 1313 (1990). Thus, Mincey has failed to establish prejudice resulting in an unfair trial. We overrule her fifth assignment of error.

{¶ 38} Weight and Sufficiency of the Evidence. In her sixth assignment of error, Mincey argues that her conviction was against the weight and sufficiency of the evidence. It was not. Mincey was convicted of being complicit with her sister, Denna, in committing felonious assault. Mincey's argument on appeal centers on her perceived weaknesses in the state's case against Denna. Eyewitness testimony established that Denna came to the fight with a jar filled with liquid. In regard to Mincey, the state presented evidence that, upon seeing Robinson, Mincey said to Denna, "That's the bitch right there," which prompted Denna to throw the contents of the jar on Robinson's face and body. Robinson testified that she was severely injured as a result of this attack. Later testing confirmed that there were sulfuric acid burns on Robinson's and Denna's clothing. Denna also had burns on her hands and back.

{¶ 39} Viewing this evidence in a light most favorable to the prosecution, we hold that a rational trier of fact could find that the state proved its case against Mincey beyond a reasonable doubt. See State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. And although Mincey presented a version of events that, if believed, would have exonerated her, in weighing the evidence presented there is no indication that the jury lost its way in choosing to believe the state's evidence instead. While Denna denied that she threw the acid, and pointed to the fact that there were burns on her back, there was testimony that Denna had thrown the acid overhanded, thereby explaining how acid could have spilled out of the jar onto her back. See State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997) ; State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983). We find no error in the jury's verdict. This assignment of error is overruled.

{¶ 40} Motion for a New Trial. In her seventh assignment of error, Mincey argues that the trial court erred when it denied her motion for a new trial. She alleges that the trial court should have granted her motion because (1) the court erroneously instructed the jury on complicity, (2) the court erred in admitting evidence of the earlier altercation between Mincey's daughters and Tonya Miller, (3) the court erroneously denied Mincey's request for an expert witness, and (4) the state failed to present sufficient evidence to convict Mincey.

{¶ 41} We have evaluated all of these arguments and determined that there was no prejudicial error. We therefore overrule this assignment of error.

{¶ 42} Mincey's Sentence. In her eighth assignment of error, Mincey asserts that the trial court erred when it sentenced her to the maximum term of eight years' incarceration. She claims that the court did not properly consider the purposes and principles of sentencing in R.C. 2929.11 and 2929.12 before imposing sentence, and that her sentence is therefore clearly and convincingly contrary to law. See State v. White, 2013-Ohio-4225, 997 N.E.2d 629, ¶ 12 (1st Dist.). This argument has no merit.

{¶ 43} The trial court did not specifically reference R.C. 2929.11 or 2929.12 before sentencing Mincey. However, the court did state on the record that it had "reviewed everything," and that Mincey had committed "the worst possible offense." See R.C. 2929.12(B). The court also noted that Robinson suffered serious physical and emotional harm, and that the maximum sentence was necessary to prevent future crime and to protect the public. See R.C. 2929.12(B)(2) and 2929.11. Finally, the court indicated that Mincey had shown no remorse, and was still acting in a threatening manner towards others. It is evident from these statements that the court considered R.C. 2929.11, and some of the factors in R.C. 2929.12. And we may presume from a silent record that the court considered the balance of the R.C. 2929.12 factors-unless Mincey can demonstrate otherwise. See State v. Kennedy, 2013-Ohio-4221, 998 N.E.2d 1189, ¶ 118 (1st Dist.). She has not.

{¶ 44} Finally, Mincey claims that the trial court erred when it failed to notify her that she would be required to submit to DNA testing, that she could not ingest or be injected with a drug of abuse, and that she would be required to submit to random drug testing in prison. This was harmless error. See State v. Taylor, 1st Dist. Hamilton No. C-150488, 2016-Ohio-4548, 2016 WL 3460843, ¶ 5-6.

{¶ 45} Mincey's eighth assignment of error is overruled.

Conclusion

{¶ 46} All assignments of error having been overruled, the trial court's judgment is affirmed.

Judgment affirmed.

Myers, J., concurs separately.

Zayas, P.J., concurs in part and dissents in part.

{¶ 47} I concur, but write separately to address the admissibility of the cell phone video. I would find that the trial court erred in admitting the cell phone video which showed a fight earlier in the day between Mincey's daughters and Tonya Miller. Mincey was not present during the fight, and there is no testimony that she ever saw the video prior to the altercation at issue here. Thus, what specifically happened at the fight is irrelevant. What is relevant is Mincey's knowledge that a fight occurred and any information that was conveyed to her about the fight. While I would find that the trial court abused its discretion in admitting this video, I would find that the error was harmless.

{¶ 48} I concur with the separate concurring opinion with respect to the admissibility of the cell phone video and the majority's resolution of the first, third, fifth, sixth, and eighth assignments of error. However, I respectfully dissent from its conclusions as to the fourth and seventh assignments of error regarding the erroneous jury instructions, and from the decision to affirm the trial court's judgment. Appellant argues that the complicity instructions omitted the mental capacity, an element of the crime, which affected her substantial rights. The majority determines that the trial court's failure to instruct the jury on the proper mens rea for complicity did not omit an essential element of the offense. I respectfully disagree with this conclusion.

Requested Jury Instruction

{¶ 49} Mincey was charged with the principal offense of felonious assault, but the state's theory of the case was that Mincey aided and abetted her sister Denna by providing the acid, pointing to Robinson, and stating, "It's that bitch right there."

{¶ 50} Both Mincey and the state filed several proposed jury instructions. Mincey filed written requested jury instructions with a complicity definition that included the mens rea of knowingly, and an instruction that explained to the jury that to find Mincey guilty, the state had to prove the mental state of knowingly beyond a reasonable doubt. The court held an off-the-record conference to discuss the instructions and objections. Afterwards, Mincey discussed her proposed instructions and objected to the court's instruction that criminal intent may be inferred from the defendant's presence. Mincey also objected to an instruction on attempting to commit an offense because it did not apply to the facts of Mincey's case. The court then stated on the record that the parties thoroughly reviewed all of the objections and instructions in conference, and the court determined the final jury instructions after the discussion. Because Mincey specifically objected to the instruction regarding criminal intent, and the trial court stated it was fully aware of Mincey's objections, she did not waive her objection. See State v. Wolons , 44 Ohio St.3d 64, 67, 541 N.E.2d 443 (1989) (holding that "in a criminal case, where the record affirmatively shows that a trial court has been fully apprised of the correct law governing a material issue in dispute, and the requesting party has been unsuccessful in obtaining the inclusion of that law in the trial court's charge to the jury, such party does not waive his objections to the court's charge by failing to formally object thereto."); Presley v. Norwood , 36 Ohio St.2d 29, 33, 303 N.E.2d 81 (1973).

{¶ 51} The trial court accepted the state's proposed jury instruction, and rejected Mincey's requests. I note that the written jury instructions that the trial court gave to the jury were not included in the record on appeal as required by R.C. 2945.10 (G). However, I presume the written instructions were the same as the oral instructions since both parties reviewed the written instructions, and neither party alleged a discrepancy between the two. See State v. Smith , 8th Dist. Cuyahoga No. 82710, 2004-Ohio-3479, 2004 WL 1472081, ¶ 73 (concluding the trial court's failure to preserve the written jury instructions was not error when both parties reviewed the written instructions and did not identify a variation between the oral and written instructions).

{¶ 52} A review of the trial transcript confirms that the trial court's instruction on complicity mirrored the written proposed instruction submitted by the state. The trial court instructed the jury as follows:

Now, this is the definition of complicity, which you heard something about. No person, acting with the kind of culpability required for the commission of an offense , shall do any of the following:
Solicit or procure another to commit the offense;
Aid or abet another in committing the offense;
Conspire with another to commit the offense;
Cause an innocent or irresponsible person to commit the offense.

(Emphasis added.)

{¶ 53} Next, the court defined the terms solicit, procure, and conspire, and explained that "aid or abet means support, assist, encourage, cooperate with, advise, or incite." The court also instructed that, "The State need not establish the principal's identity, but need only prove that a principal committed the offense. Defendant's criminal intent may be inferred from the defendant's presence, companionship, and conduct before and after the offense is committed." ( Emphasis added.)

{¶ 54} Finally, the court's concluding instruction regarding how to reach a verdict explained that, "If you find beyond a reasonable doubt that Denna Mincey and/or Michelle Mincey was complicit with another in the commission of a felonious assault, she is to be regarded as if she were the principal offender and is just as guilty as if she had personally performed every act constituting the offense of felonious assault." The court then proceeded to instruct the jurors on felonious assault.

Ohio Jury Instructions on Complicity

{¶ 55} Prior to 2016, OJI had one jury instruction for complicity whether the defendant was charged under R.C. 2923.03 or charged in terms of the principal offense. Former Ohio Jury Instructions , CR Section 523.03. In 2016, OJI was amended to create two instructions, the instruction for defendants charged with the complicity statute, and a new instruction for defendants charged in terms of the principal offense. Both require the court to include the culpable mental state in the concluding instruction.

{¶ 56} When the defendant is charged in terms of the principal offense under a complicity theory, the model instruction states:

1. The state of Ohio has presented a theory that the defendant acted in complicity with the principal offender in the commission of (insert name of offense[s] ). A person who is complicit with another in the commission of a criminal offense is regarded as guilty as if he/she personally performed every act constituting the offense. This is true even if he/she did not personally perform every act constituting the offense or was not physically present at the time the offense was committed.
2. Before you can find the defendant guilty of complicity in the commission of (insert name of offense[s] ), you must find beyond a reasonable doubt, that * * * the defendant (insert applicable culpable mental state if one is required for the commission of the principal offense )
(Use appropriate alternative[s] )
(A)(1) (solicited) (procured) another to commit the offense of (specify offense );
(or )
(A)(2) aided or abetted another in committing the offense of (specify offense );
(or )
(A)(3) conspired with another to commit the offense of (specify offense );
(or )
(A)(4) caused an (innocent) (irresponsible) person to commit the offense of (specify offense ).

{¶ 57} The jury should not be instructed on conspiracy unless the defendant was charged with conspiracy in violation of R.C. 2923.01. After providing the jury with the appropriate alternative, the trial court is required to define the culpable mental state to the jury. Next, the jury should be instructed on "aided or abetted" as follows:

Before you can find the defendant guilty of complicity by aiding and abetting, you must find beyond a reasonable doubt that the defendant supported, assisted, encouraged, cooperated with, advised, or incited the principal offender in the commission of the offense and that the defendant shared the criminal intent of the principal offender. Such intent may be inferred from the circumstances surrounding the offense including but not limited to, presence, companionship and conduct before and after the offense was committed. The mere presence of the defendant at the scene of the offense is not sufficient to prove, in and of itself, that the defendant was an aider and abettor.

Then the court should define the elements of the principal offense together with any applicable definitions. The court should not instruct on an attempt unless the defendant is charged with complicity in an attempt.

Standard of Review

{¶ 58} "Due process requires that the state establish beyond a reasonable doubt every fact necessary to constitute the crime charged." State v. Lynn , 129 Ohio St.3d 146, 2011-Ohio-2722, 950 N.E.2d 931, ¶ 15. Generally, a defendant is entitled to have the court instruct the jury "on all elements that must be proved to establish the crime with which he is charged, and, where specific intent or culpability is an essential element of the offense, a trial court's failure to instruct on that mental element constitutes error." State v. Adams, 62 Ohio St.2d 151, 153, 404 N.E.2d 144 (1980). The failure to instruct a jury concerning an essential element effectively removes that element from the jury's deliberations.

{¶ 59} If the defendant objects to the error, an appellate court applies a harmless-error review. State v. Perry , 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 15. Under that standard, "the government bears the burden of demonstrating that the error did not affect the substantial rights of the defendant." Id. , citing United States v. Olano , 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). See State v. Gross , 97 Ohio St.3d 121, 2002-Ohio-5524, 776 N.E.2d 1061, ¶ 136 ("Once [the defendant] objected to the [error], the burden shifted to the state to demonstrate an absence of prejudice."). The inquiry is whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict. Neder v. United States , 527 U.S. 1, 15, 119 S.Ct. 1827, 144 L.Ed 2d 35 (1999). When the court fails to instruct on an element, the error is harmless if the "omitted element is supported by uncontroverted evidence[.]" Id. at 18, 119 S.Ct. 1827. "An appellate court must reverse a conviction if the government does the not satisfy this burden * * *." Perry at ¶ 15.

The State Failed to Meet its Burden

{¶ 60} Here, the state failed to demonstrate an absence of prejudice. The state does not dispute that the trial court failed to instruct that the mens rea for complicity to commit felonious assault was knowingly. Instead, the state merely argues on appeal that Mincey was not prejudiced by the omission because the instruction tracked the language of the complicity statute, R.C. 2923.03, and the court defined complicity as "acting with the kind of culpability required for the commission of an offense * * *." However, the state did not demonstrate that the error did not contribute to the conviction.

{¶ 61} The state's sole theory and the evidence at trial was that Mincey was an accomplice rather than the principal offender. No testimony supported a theory that Mincey threw the acid. Rather, the evidence was that Mincey's sister threw the acid and that Mincey aided and abetted her. Therefore, I must conclude that the jury found Mincey guilty on an aiding-and-abetting theory.

{¶ 62} The model instructions required that the jurors be instructed that they must find, beyond a reasonable doubt, that Mincey knowingly aided or abetted another, and immediately after that instruction, the court should have defined knowingly. Additionally, the definition of aid and abet should have made it clear that Mincey must have shared the criminal intent of her sister.

{¶ 63} In this case, the jury instructions on complicity did not affirmatively state the correct culpable mental state for complicity. The complicity instructions completely omitted the mens rea of knowingly. Although the court mentioned in its complicity definition that "no person, acting with the culpability required for the commission of an offense shall do any of the following," the court failed to specify that the requisite culpability was knowingly, and did not instruct the jury that the underlying offense was felonious assault. This error was compounded by the fact that the court instructed the jurors that "defendant's criminal intent may be inferred," without clarifying that the defendant shared the criminal intent of the principal offender. The concluding instruction did not include any culpable mental state. These jury instructions were flawed because they did not make it clear that Mincey could only be convicted as an aider and abettor if she knowingly acted to aid and abet in the felonious assault.

{¶ 64} When the court fails to instruct the jury as to all of the elements of an offense, the error is not harmless unless the "omitted element is supported by uncontroverted evidence." Neder , 527 U.S. at 15, 119 S.Ct. 1827, 144 L.Ed.2d 35. In this case, the evidence against Mincey was not overwhelming and was contested. The only independent witness, Todd Martin, a construction worker, testified that he saw a woman walk up to a house and start yelling and screaming. Two teenaged girls, who looked like twins, came out of the house, and stood on the porch arguing with the woman on the sidewalk. After the woman left, the other two teenagers walked down the street. Later, he saw one of the teenaged girls again leave the same porch and walk down the street with a mason jar with a brownish-reddish liquid. Although he did not see the teen return to the home to retrieve the glass jar, he testified that the home in question was not the Mincey home.

{¶ 65} Robinson testified that she did not see Denna leave the house with a jar, but saw her running on the street with a jar without a lid that was completely full with a brown liquid. None of the liquid splashed or spilled while Denna was running. Denna approached Robinson with the jar and asked, "Which one?" Mincey responded, "It's that bitch right there." Robinson also testified that she did not see Mincey or Denna fighting with anyone, and that she did not fight with Denna.

{¶ 66} Tynia, Robinson's younger sister, testified that she saw the Minceys leave the house and hurry down the street. Denna did not have anything in her hands. Mincey and Denna began fighting. Denna fought, using both fists, with Keisanna, Tynia, Lakesha and Robinson. Tynia was fighting with Mincey when Mincey used a taser on her. During a pause in the fight, Mincey gave Denna a jar that was three quarters of the way full, pointed at Robinson, and said, "Get that bitch right there." Denna threw the liquid on Robinson. Tynia initially told the police that Denna was wearing a white shirt. She also testified at the first trial that the person who threw the jar was wearing a tight white shirt. During the second trial, she testified that she could not remember if Denna was wearing a blue or white shirt. The evidence was uncontroverted that Denna was wearing a blue shirt.

{¶ 67} Both Mincey sisters testified that they did not have a jar of acid. Denna further testified that she did not throw the acid during the fight. Finally, Mincey denied pointing at Robinson and stating, "It's that bitch right there." Because the evidence was contested, I cannot conclude that the failure to instruct on the mens rea did not contribute to the verdict.

{¶ 68} The majority concludes that the faulty instructions did not omit an element of the offense. In reaching this conclusion, the majority relies on Skatzes , which held that an instruction that tracked the language of the statute was sufficient. Skatzes , 104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215, at ¶ 58. The concluding instruction in Skatzes , which included a reference to the culpable mental state, instructed that "before you can find the defendant guilty, you must find beyond a reasonable doubt that * * * the defendant, acting with the required culpable mental state for the particular offense , * * * conspired with another to commit the offense." Unlike Skatzes , the concluding instruction in this case did not mention anything about the requisite mental culpability.

{¶ 69} Further, the Ohio Jury Instructions have changed since Skatzes . They currently require that the mens rea be included and defined when the offender is not charged with violating the complicity statute. Although the instructions are not mandatory, "they are recommended instructions, based primarily upon case law and statutes." State v. Jones , 2015-Ohio-5029, 52 N.E.3d 263, ¶ 15 (12th Dist.). "The standard instructions are crafted by the Ohio judicial conference and sanctioned by the Ohio Supreme Court to assist trial judges and lawyers in correctly and efficiently charging the jury on the law applicable to a particular case. The [Ohio Jury Instructions] are authoritative, and are generally to be followed and applied by Ohio's courts." State v. Jeffries , 11th Dist. Lake No. 2007-L-011, 2008-Ohio-1894, 2008 WL 1777846, ¶ 107 (O'Toole, J. concurring).

{¶ 70} The model instructions "suggest that the trial court's failure to instruct on the mens rea of complicity was significant." Langford v. Warden , Ross Corr. Inst. , 593 Fed.Appx. 422, 433 (6th Cir.2014), vacated and remanded , --- U.S. ----, 135 S.Ct. 2888, 192 L.Ed.2d 919 (2015), aff'd , 665 Fed.Appx. 388 (6th Cir.2016), cert. denied , --- U.S. ----, 137 S.Ct. 2187, 198 L.Ed.2d 255 (2017). In Langford , the defendant was charged with aggravated murder and murder, both with gun specifications, for the death of a rival gang member in a shootout. Id. at 425. At trial, the state presented two theories of the murder. Id. at 425-426. The first was that Langford was the actual shooter, and the second was that he was an accomplice. Id. at 426. However, the evidence presented at trial was consistent with a theory of accomplice liability rather than principal offender liability. Id. at 432.

{¶ 71} The trial court's concluding instruction stated: "Before you can find the defendant guilty of a crime as a complicitor or aider and abettor, you must find beyond a reasonable doubt that ... the defendant aided or abetted another in purposely committing the offenses...." Id. at 429. However, the court did not instruct the jury that complicity required a mens rea of purposely. Id. at 429. The jury convicted Langford of murder. Id. at 426.

{¶ 72} The Sixth Circuit Court of Appeals affirmed the trial court's decision granting Langford's habeas petition because the failure to properly instruct on the mental culpability for a complicitor violated his jury-trial right. Id. at 428.

Although the trial court included the mens rea of purposely in its definition in the instructions on aggravated murder, the Sixth Circuit found that the complicity instruction was erroneous because the instruction did not specifically include that the defendant purposely aided and abetted another. Id. at 428-429. "[T]he trial court improperly inserted the culpable mental state before the wrong verb." Id. at 433. The court ultimately concluded that "[t]he failure to instruct on the mens rea of complicity, therefore, had a substantial influence in determining the jury's verdict." Id.

{¶ 73} Here, as in Langford , the trial court failed to instruct on the mens rea of complicity. As the Sixth Circuit explained, "although the instructions did not directly state that complicity is a strict-liability crime, they also did not affirmatively state the correct mens rea. Rather, the instructions omitted mention of the mens rea for complicity altogether." Id. at 429. Every element of the offense must be proved beyond a reasonable doubt, and the failure to instruct a jury concerning an essential element effectively removes that element from the jury's deliberations. In this case, the failure to instruct on that element constitutes harmless error. See Adams, 62 Ohio St.2d at 153, 404 N.E.2d 144.

{¶ 74} Therefore, I conclude that the trial court's failure to instruct on an essential element of the offense was error that contributed to the conviction. Accordingly, I would sustain the fourth and seventh assignments of error, reverse the judgment of the trial court, and remand the cause for a new trial.

      The trial court never put on an entry overruling the motion. We may presume that it did so sub silentio. See State v. Reid , 1st Dist. Hamilton No. C-050465, 2006-Ohio-6450, 2006 WL 3524423, ¶ 8.

      That instruction states, in relevant part, that:
      The defendant is charged with complicity in the commission of (specify offense ). Before you can find the defendant guilty, you must find beyond a reasonable doubt that * * * the defendant (insert culpable mental state if one is required for the commission of the principal offense ). Ohio Jury Instructions , CR Section 523.03(A) (Rev. 2/6/16).


author: FROELICH, J.

text:
    STATE of Ohio, Plaintiff-Appellee v. Davion MCCOMB, Defendant-Appellant
    No. 27468
    Court of Appeals of Ohio, Second District, Montgomery County.
    Rendered on February 23, 2018
    MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45402, Attorney for Plaintiff-Appellee
    ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, P.O. Box 340214, Beavercreek, Ohio 45434, Attorney for Defendant-Appellant
   FROELICH, J.

{¶ 1} In this delayed appeal, Davion McComb claims that the trial court erred in sentencing him to mandatory prison terms, in light of State v. Hand , 149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448. For the following reasons, the trial court's judgment will be affirmed in part, modified in part, and the matter will be remanded for the trial court to issue a revised judgment entry that eliminates the mandatory nature of defendant's sentence for aggravated robbery.

{¶ 2} On October 9, 2015, McComb was charged by bill of information with aggravated robbery (deadly weapon), a felony of the first degree, and with felonious assault (deadly weapon), a felony of the second degree; each offense included a firearm specification. The same day, McComb waived an indictment and 24-hour service of the bill of information, and he pled no contest to the charges; the State dismissed the firearm specifications. The trial court found him guilty and sentenced him to a mandatory three years in prison for aggravated robbery and to two years in prison for felonious assault; the trial court's judgment entry indicated that the three-year sentence was mandatory pursuant to R.C. 2929.13(F). The trial court ordered the sentences to be served concurrently to each other and to an aggregate 10-year sentence in another case (Montgomery C.P. No. 2015-CR-1152/1).

{¶ 3} McComb did not appeal his conviction within the 30-day time period required by App.R. 4(A).

{¶ 4} On February 17, 2017, McComb filed a notice of appeal and a motion for leave to appeal, pursuant to App.R. 5(A). In his motion for leave to file a delayed appeal, McComb indicated that he sought to challenge, in light of Hand , the mandatory nature of his sentences. McComb stated that he had filed an appellate brief in his appeal from Case No. 2015-CR-1152/1 (Appellate Case No. 26884), in which he challenged the mandatory nature of his sentences under Hand . He asserted that "the Hand case would also impact 2015 CR 01836/3 if McComb is permitted to have an appeal from that case as well * * *."

{¶ 5} The State opposed the motion, arguing that McComb's convictions in this case were final due to his failure to timely appeal and that Hand did not apply retroactively to convictions that were final.

{¶ 6} On April 4, 2017, we granted McComb's motion for leave to file a delayed appeal, and stated that "[t]his matter shall proceed in accordance with the Rules of Appellate Procedure."

{¶ 7} In his sole assignment of error, McComb claims that "the trial court erred when it sentenced McComb to mandatory prison terms on Counts I and II." As in its memorandum opposing McComb's motion for leave to file a delayed appeal, the State argues in its appellate brief that Hand should not apply to McComb, because he did not file a timely appeal and thus his conviction was final.

{¶ 8} In general, "[a] new judicial ruling may be applied only to cases that are pending on the announcement date, and the new judicial ruling may not be applied retroactively to a conviction that has become final, that is, where the accused has exhausted all of his appellate remedies." State v. Greathouse , 2d Dist. Montgomery No. 24935, 2012-Ohio-2414, 2012 WL 1964960, ¶ 6, citing Ali v. State , 104 Ohio St.3d 328, 2004-Ohio-6592, 819 N.E.2d 687 ; State v. Smith , 2d Dist. Montgomery No. 27294, 2017-Ohio-2684, 2017 WL 1821416, ¶ 11.

{¶ 9} Generally, a defendant's appellate remedies from a judgment of conviction consist of a timely appeal as of right to an intermediate court of appeals, see App.R. 3 and 4, and a jurisdictional appeal to the Supreme Court of Ohio, see S.Ct.Prac.R. 5.02. The Ohio Rules of Appellate Procedure allow, in certain circumstances and with leave of the appellate court, for an untimely appeal, see App.R. 5(A), and for the appellate process to be reopened, see App.R. 5(B) and 26(B). Where leave is granted, the defendant has not exhausted his or her appellate remedies, the conviction is not final, and an appellate court may review the assignment of error as if the direct appeal had been timely filed.

{¶ 10} At the outset, we note that McComb has already served more than two years in prison, and thus he has completely served his sentence for felonious assault. Accordingly, we find that McComb's challenge to his two-year sentence for felonious assault is moot. Regardless, although the trial court orally stated at the combined plea and sentencing hearing that the prison sentences for both felonious assault and aggravated robbery were mandatory, the trial court's subsequent judgment entry, filed on October 14, 2015, imposed a mandatory sentence only for Count 1, aggravated robbery. Because a court speaks through its journal, e.g., State v. Friend , 2d Dist. Montgomery Nos. 26867, 2016-Ohio-5868, 2016 WL 4986857, ¶ 27, McComb's sentence for felonious assault was a non-mandatory sentence. McComb's assignment of error with respect to Count 2 (felonious assault) is overruled.

{¶ 11} The record reflects that the court imposed a mandatory prison term for aggravated robbery pursuant to R.C. 2929.13(F)(6), which provides for a mandatory sentence when a defendant is convicted of a first-or second-degree felony and "previously was convicted of or pleaded guilty to * * * any first or second degree felony[.]"

{¶ 12} In Hand , 149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448, the Ohio Supreme Court struck down R.C. 2901.08(A), which provided that a prior juvenile adjudication "is a conviction for a violation of the law or ordinance for purposes of determining the offense with which the person should be charged and, if the person is convicted of or pleads guilty to an offense, the sentence to be imposed upon the person relative to the conviction or guilty plea." The supreme court held that R.C. 2901.08(A) violated the Due Process Clauses of the Ohio and United States Constitutions, because "it is fundamentally unfair to treat a juvenile adjudication as a previous conviction that enhances either the degree of or the sentence for a subsequent offense committed as an adult." Hand at paragraph one of the syllabus. Hand further held that, "[b]ecause a juvenile adjudication is not established through a procedure that provides the right to a jury trial, it cannot be used to increase a sentence beyond a statutory maximum or mandatory minimum." Id. at paragraph two of the syllabus.

{¶ 13} The trial court imposed a mandatory sentence for aggravated robbery due to McComb's prior juvenile adjudication for aggravated robbery. In light of Hand , the court's imposition of a mandatory sentence based on the prior juvenile adjudication was error. We reiterate that, by applying Hand to McComb's aggravated robbery conviction, we are not applying Hand retroactively to a final judgment; rather, we are applying Hand to a conviction that is currently pending on direct appeal.

{¶ 14} McComb's assignment of error is sustained in part as to his aggravated robbery conviction and overruled as to his felonious assault conviction. Accordingly, the trial court's judgment is affirmed as to Count 2 (felonious assault). Concerning Count 1 (aggravated robbery), the three-year term of imprisonment imposed by the trial court is modified solely to reflect that the term of imprisonment is not mandatory in nature. As so modified, the trial court's judgment is affirmed. This matter is remanded to the trial court for the limited purposes of issuing a revised judgment entry consistent with our judgment herein and to notify the appropriate prison officials of that revised judgment entry.

DONOVAN, J. and HALL, J., concur.