author: MARY EILEEN KILBANE, J.:

text:
    STATE of Ohio, Plaintiff-Appellee v. Jeron D. HIGH, Defendant-Appellant
    No. 106198
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: June 7, 2018
    Patricia J. Smith, 206 S. Meridian Street, Suite A, Ravenna, Ohio 44266, ATTORNEY FOR APPELLANT.
    Michael C. O'Malley, Cuyahoga County Prosecutor, Brian Lynch, Assistant County Prosecutor, The Justice Center-9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE.
    BEFORE: Kilbane, E.A. Gallagher, A.J., and Blackmon, J.
    JOURNAL ENTRY AND OPINION
   MARY EILEEN KILBANE, J.:

{¶ 1} Defendant-appellant, Jeron D. High ("High"), appeals his convictions, resulting from a drive-by shooting in the city of Cleveland.

{¶ 2} In March 2017, High was charged in a nineteen-count indictment. He was charged with participating in a criminal gang; improper discharge into a habitation; six counts of attempted murder; eight counts of felonious assault; two counts of discharging a firearm on or near prohibited premises; and improper handling firearms in a motor vehicle. Thirteen of the counts carried a criminal gang specification and seventeen of the counts carried multi-year firearm specifications with the "drive-by shooting" enhancement.

{¶ 3} On the day of trial, High waived his right to a jury and the matter proceeded before the bench. The following evidence was adduced at trial.

{¶ 4} On October 4, 2016, at approximately 10:30 p.m., P.J.D. was sitting outside on the front stairs of her Cleveland home with her three-year-old daughter, S.D., and P.J.D.'s eighteen-year-old sister, W.D. As they were outside, she observed two teenage males run across her front yard. P.J.D. testified that the males were searching through a purse they stole from an unknown female. As she told the teenagers that they need to leave her property, a four-door vehicle pulled up in front of her home. The driver's side of the vehicle faced her home. A black male in the rear driver's side seat started shooting a gun from his window. P.J.D. testified the gunman was trying to shoot at the two teenagers. When P.J.D. got back inside the house, she realized that S.D. was shot. P.J.D.'s grandmother was on the phone with 911 while P.J.D. performed CPR on S.D. S.D. bled from the back of her head and was gasping for air. P.J.D. testified that the bullet went from the back to the front of S.D.'s head. EMS arrived and rushed S.D. to the hospital where she had emergency surgery and placed on life support. S.D. has required over 20 brain surgeries since the incident. At the time of trial, P.J.D. testified that S.D. has been in the hospital since the incident.

{¶ 5} P.J.D.'s nine-year-old sister, E.D., while sitting in the living room, was also shot during this incident. P.J.D. testified that the bullet left a hole in E.D.'s lower back by her spine. E.D. was also taken to the hospital and required surgery to remove the bullet from her lower back.

{¶ 6} Cleveland Police Detective Robert Beveridge ("Detective Beveridge") investigated the matter. Detective Beveridge obtained surveillance footage from a neighbor's house, which showed two vehicles driving toward P.J.D.'s house at the time of the shooting. One of the vehicles pictured in the surveillance footage was a Honda Accord, which was later determined to be stolen from Avon Lake, Ohio. The other vehicle was a white jaguar.

{¶ 7} The Honda Accord was recovered by Lakewood police on October 11, 2016. Upon recovery, Avon Lake Police Detective Justin Ludwig ("Detective Ludwig") processed the vehicle for forensic and physical evidence. Detective Ludwig recovered an android cell phone and a 9 mm bullet from the Honda Accord. The subscriber name associated with the android phone was "Jay Doe," which is High's nickname. Detective Ludwig later learned from the owner of the Honda Accord that a different cell phone saved as "Jaydoe's iPhone" was synced to the car's Bluetooth function.

{¶ 8} Codefendant, D.W., testified that he was friends with High and codefendant, J.J. On October 4, 2016, High, D.W., and J.J. drove around the westside of Cleveland in a Honda Accord that D.W. stole around October 3, 2016. D.W. was driving the vehicle, High was the front seat passenger, and J.J. was in the backseat. J.J. wanted to drive around the Denison Avenue area because he was looking for someone named "Bo-Bo." D.W. testified that High, J.J., and himself were members of the "Detroit Taking Over" or "DTO" gang. DTO had a rivalry with a gang from Denison. D.W. testified there were multiple shootings between DTO and Denison members. D.W. further testified that J.J. kept saying "let's go" look for rival gang members, and he and High "agreed to it after that."

{¶ 9} Accompanying the Honda was a white Jaguar. B.Y., who is a also a member of DTO, was the driver of the white Jaguar and had three other males in the car with him. D.W. testified that both vehicles pulled into a gas station. D.W. initially testified that while at the gas station, J.J. got out of the Honda, walked over to the Jaguar, and began talking to B.Y. B.Y. then gave J.J. a gun. D.W. later testified, however, that he was mistaken and that B.Y. gave him the 9 mm handgun, which he placed in the middle of the vehicle. They then drove the two vehicles into Denison territory so that they could fight the "dudes from Denison."

{¶ 10} Eventually, both the Honda Accord and the Jaguar drove to the area of West 73rd and Dudley Avenue. D.W. was following B.Y. at the time. As D.W. was driving, J.J. said "[t]here he go." J.J. was referring to "Bo-Bo and them." D.W. then slammed on the brakes and J.J., who was in the back seat, grabbed the gun from between the driver and front passenger seat. D.W. acknowledged that he previously told law enforcement and testified in juvenile court that High passed the gun to J.J. At High's trial, he testified that High did not pass J.J. the gun. D.W. testified that J.J. then started shooting towards the residence at 7316 Dudley Avenue. D.W. drove away after J.J. fired the gun.

{¶ 11} B.Y. testified that he is friends with J.J., D.W., and High. B.Y. testified that he was with J.J., D.W., and High on October 4, 2016. He was driving a Jaguar and D.W. was driving a Honda Accord. On that day, B.Y. was carrying a beige and black 9 mm handgun with a red beam and flashlight attached. B.Y. testified that he gave the gun to High prior to the shooting. B.Y. further testified that he gave High the gun because High had a "little beef" with Denison members and High knew Denison members "don't fight. They shoot." B.Y. testified that the Denison members have shot at him before, along with J.J., and their friend, Deondre Arnold ("Dre"). When they approached the area of Dudley Avenue and West 73rd, the Honda Accord was following his vehicle. As he approached the street corner, he heard gun shots and thought somebody was shooting at his vehicle.

{¶ 12} The state presented evidence linking High to B.Y.'s 9 mm handgun. Detective Beveridge testified that High sent a private Facebook message to "LOH Keese" on October 15, 2016, with a photograph of a gun that was "very similar" to B.Y.'s 9 mm. B.Y. also identified his 9 mm handgun in a photograph of a firearm from High's Facebook page. In a photograph of High and D.W., B.Y. identified his 9 mm handgun, which High was displaying.

{¶ 13} The state also presented evidence on the DTO gang. Detective Beveridge testified to High's involvement in the DTO and the Heartless Felon criminal gangs. Detective Beveridge further testified that DTO's rival gang is the Denison Boys, also known as "So Paid Entertainment" or "SPE." According to Detective Beveridge, there have been several shootings between members of the Denison Boys and DTO. One specific shooting involved Dre and Bo-Bo. Bo-Bo is believed to have shot Dre. In a September 9, 2016 private Facebook conversation between J.J. and High, they discussed "going to war" with Denison members. J.J. states to High "we blowing Denison up you geeked me and Quano just went to war." High responded, "[t]onight we trying to get armor dude" and then sends J.J. a photograph of a large rifle.

{¶ 14} Detective Beveridge testified that High, B.Y., and J.J. were involved in a "shoot-out" with the Denison Boys on November 3, 2016, which was one month after the incident on Dudley Avenue. Detective Beveridge testified that High, J.J., B.Y., and another friend were in Denison territory near West 99th and Denison when the "shoot-out" occurred. B.Y. was shot at this time.

{¶ 15} Detective Beveridge further testified about a private Facebook conversation on November 3, 2016. In the conversation, High was told that B.Y. was in the hospital after being shot. High sent a message later that day to B.Y.'s account that it was "SPE" who shot B.Y. High knew "for sure I seen them[,] I never ran." High and Antonio Diggs, a DTO member, also discussed the November 3rd "shoot-out." High messaged Diggs "[f]or sure SPE gotta die."

{¶ 16} The state also introduced several jail calls made by High as evidence at trial. In one jail call, High requested B.Y. fill out an affidavit and withdraw his previous statement to law enforcement. In another jail call, High asked an unknown party to deactivate his Facebook account.

{¶ 17} At the conclusion of the bench trial, the court found High guilty of all counts and specifications. The trial court sentenced High to an aggregate of 18 years in prison.

{¶ 18} High now appeals, raising the following two assignments of error for review.

Assignment of Error One

[High's] convictions were based upon insufficient evidence to sustain the convictions. The trial court erred by denying [High's] Crim.R. 29 motion on all counts when the state failed to prove with sufficient evidence that [High] aided and abetted the offenses.

Assignment of Error Two

[High's] convictions were against the manifest weight of the evidence.

Sufficiency of the Evidence

{¶ 19} In the first assignment of error, High argues the state failed to produce sufficient evidence that he aided and abetted in the charged offenses.

{¶ 20} In State v. Diar , 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 113, the Ohio Supreme Court explained the standard for sufficiency of the evidence as follows:

Raising the question of whether the evidence is legally sufficient to support the jury verdict as a matter of law invokes a due process concern. State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). In reviewing such a challenge, "[t]he 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." State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, following Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

{¶ 21} We are mindful that in considering the sufficiency of the evidence a certain perspective is required. State v. Eley , 56 Ohio St.2d 169, 172, 383 N.E.2d 132 (1978). "This court's examination of the record at trial is limited to a determination of whether there was evidence presented, 'which, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt.' " Id. , quoting Atkins v. State , 115 Ohio St. 542, 546, 155 N.E. 189 (1926). It is the minds of the trier of fact, rather than a reviewing court, that must be convinced. State v. Thomas , 70 Ohio St.2d 79, 80, 434 N.E.2d 1356 (1982).

{¶ 22} Here, High's convictions were premised on High aiding and abetting in the drive by shooting. It is well established that "a defendant charged with an offense may be convicted of that offense upon proof that he was complicit in its commission[.]" State v. Herring , 94 Ohio St.3d 246, 251, 762 N.E.2d 940 (2002). Ohio's complicity statute, R.C. 2923.03(A)(2), provides: "[n]o person, acting with the kind of culpability required for the commission of an offense, shall * * * [a]id or abet another in committing the offense." In State v. Johnson , 93 Ohio St.3d 240, 754 N.E.2d 796 (2001), syllabus, the Ohio Supreme Court held:

To support a conviction for complicity by aiding and abetting * * *, the evidence must show that the defendant supported, assisted, encouraged, cooperated with, advised, or incited the principal in the commission of the crime, and that the defendant shared the criminal intent of the principal. Such intent may be inferred from the circumstances surrounding the crime.

{¶ 23} Aiding and abetting may be shown by both direct and circumstantial evidence, and " '[p]articipation in criminal intent may be inferred from presence, companionship, and conduct before and after the offense is committed.' " State v. Cartellone , 3 Ohio App.3d 145, 150, 444 N.E.2d 68 (8th Dist.1981), quoting State v. Pruett , 28 Ohio App.2d 29, 34, 273 N.E.2d 884 (4th Dist.1971). However, "the mere presence of an accused at the scene of a crime is not sufficient to prove, in and of itself, that the accused was an aider and abettor." State v. Widner , 69 Ohio St.2d 267, 269, 431 N.E.2d 1025 (1982).

{¶ 24} We find Johnson instructive. In Johnson , members of the Bloods gang opened fire on members of the Crips. Edward McGaha ("McGaha"), a member of the Crips, was wounded. The defendant, Leslie Johnson ("Johnson"), was a member of the Crips gang and was present during the attack. Id. One of the primary shooters in the attack was Richard Miles ("Boom"), who was a Bloods gang member. Id. at 797.

{¶ 25} Later that day, McGaha returned home from the hospital and was sitting on the front porch of his mother's home with some other Crips gang members and associates, including Johnson, when a carload of Bloods pulled up and opened fire a second time. The Crips returned fire. No one was injured in the exchange. After this second exchange of gunfire, Johnson, McGaha, and other associates discussed how they were going to go after Boom for his involvement in the shooting. Id. at 797-798.

{¶ 26} Johnson was a passenger in a caravan of three vehicles filled with Crips members that drove to Bloods' territory. Johnson sat in the backseat of a stolen car. The front seat passenger had a .45 automatic handgun. They were looking for Boom and planned to shoot him if they found him. Id. at 798.

{¶ 27} The stolen car pulled up to an apartment complex that Boom was known to frequent. Three individuals were on the back porch of the apartment complex and individuals were inside the apartment. The passenger sitting next to Johnson asked "where is Boom?" One individual replied, "he don't live here." The passenger said, "well, tell Boom this" and opened fire. Three individuals were wounded and a three-year-old child was killed. Id.

{¶ 28} Johnson argued that since no witness pinpointed a specific statement by him of his intent to join the plan to kill Boom, there was insufficient evidence to support a conviction for complicity based on aiding and abetting. Id. at 801. The Ohio Supreme Court disagreed, stating that Johnson's position "defies not only the law but common sense." Id.

{¶ 29} The court found that Johnson was more than a mere bystander-he intended to assist with the murder of Boom. Id. at 800. Johnson was a member of the Crips gang involved in three separate gang-related shootings in a 24-hour period. The court stated, Johnson "went along on that fateful night as protection and support for his fellow gang members who had recently been 'disrespected.' He also had his own reason for revenge, as he himself had been shot at earlier that day." Id. Johnson rode around town in areas known to be frequented by rival Bloods gang members for over an hour looking for Boom. Id. The court emphasized that Johnson could have abandoned the plan to kill Boom at several points throughout the day, but instead chose to continue on with the three-car caravan in search of Boom. Id.

{¶ 30} Similarly, in the instant case, High argues there was no testimony or evidence that he incited, advised, encouraged, or shared in J.J.'s criminal intent and that he was an innocent bystander. A review of the record, however, reveals sufficient evidence to conclude that High aided and abetted in the drive-by shooting.

{¶ 31} Here, High went along as protection and support for his fellow DTO gang members who had recently been "disrespected" by a rival gang-Denison Boys. DTO members believed that a Denison Boy member Bo-Bo shot Dre. Similar to Johnson , DTO members drove in a stolen vehicle to areas known to be frequented by Denison Boy gang members looking for Bo-Bo. D.W. testified it was J.J.'s idea to go to Denison territory. D.W. further testified that all occupants of the stolen Honda Accord, including High, agreed to drive around looking for rival Denison members, stating "if one is looking, we're all looking" for Denison Boy members.

{¶ 32} High could have abandoned the plan to locate Bo-Bo, but instead agreed to continue on with the two-car caravan in search of Bo-Bo and other Denison Boy gang members. As the occupants of the Honda Accord drove around looking for Denison members, they had B.Y.'s loaded 9 mm handgun in their vehicle. A rational trier of fact could find that High provided "protection and support" to the principal and played a strong role in facilitating the commission of the offense.

{¶ 33} Furthermore, the evidence at trial established that High's involvement in the November 3, 2016 shooting is strongly corroborative of his intent in the instant case. Detective Beveridge testified that High, B.Y., and J.J. were involved in a "shoot-out" with the Denison Boys approximately one month later. Detective Beveridge testified that B.Y. was shot during this encounter with Denison Boy members. Detective Beveridge described a Facebook message where High admitted to being present at the "shoot-out" with Denison Boy members. High's Facebook messages detailed DTO's rivalry with the Denison Boys and his direct participation in that rivalry.

{¶ 34} Based on the foregoing, the evidence established that High was more than a mere bystander. Like the defendant in Johnson , High could have abandoned the plan to locate Bo-Bo, but instead agreed to continue on with the two-car caravan in search of Bo-Bo and other Denison gang members. High, with a loaded firearm next to him in the vehicle, drove around with other DTO gang members into areas frequented by Denison Boy members. Furthermore, High's Facebook records reveal that he shared the criminal intent of the principal during the shooting. The state presented sufficient evidence that High aided and abetted in the charged offenses.

{¶ 35} Accordingly, the first assignment of error is overruled.

Manifest Weight of the Evidence

{¶ 36} In the second assignment of error, High argues that his convictions are against the manifest weight of the evidence.

{¶ 37} In contrast to a sufficiency argument, a manifest weight challenge questions whether the state met its burden of persuasion. State v. Bowden , 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, 2009 WL 2186608, ¶ 13, citing Thompkins , 78 Ohio St.3d at 390, 678 N.E.2d 541. The Ohio Supreme Court in State v. Wilson , 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, has stated:

[T]he reviewing court asks whose evidence is more persuasive-the state's or the defendants? * * * "When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a 'thirteenth juror' and disagrees with the factfinder's resolution of the conflicting testimony."
[ Thompkins at 387, 678 N.E.2d 541 ], citing Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652.

{¶ 38} Moreover, an appellate court may not merely substitute its view for that of the jury, but must find that " 'in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.' " Thompkins at 387, 678 N.E.2d 541, quoting State v. Martin , 20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.1983). Accordingly, reversal on manifest weight grounds is reserved for " 'the exceptional case in which the evidence weighs heavily against the conviction.' " Id. , quoting Martin .

{¶ 39} We note that when considering a manifest weight challenge, the trier of fact is in the best position to take into account inconsistencies, along with the witnesses's manner, demeanor, gestures, and voice inflections, in determining whether the proffered testimony is credible. State v. Kurtz , 8th Dist. Cuyahoga No. 99103, 2013-Ohio-2999, 2013 WL 3582078, ¶ 26 ; see also State v. Lilliard , 8th Dist. Cuyahoga Nos. 99382, 99383, and 99385, 2013-Ohio-4906, 2013 WL 5970247, ¶ 93 (In considering the credibility of witnesses on a manifest weight challenge, an appellate court is "guided by the presumption" that the jury, or the trial court in a bench trial, is " 'best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony.' " Id. , quoting Seasons Coal Co. v. Cleveland , 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984) ). Therefore, we afford great deference to the factfinder's determination of witness credibility. State v. Ball , 8th Dist. Cuyahoga No. 99990, 2014-Ohio-1060, 2014 WL 1340226, ¶ 36.

{¶ 40} High argues that B.Y.'s testimony lacked credibility because he had reason to testify for the state. Here, B.Y. testified that he gave High his 9 mm handgun prior to the shooting. At trial, D.W. testified that J.J. grabbed the 9 mm handgun in the car when he believed he saw Bo-Bo. However, D.W. acknowledged that he previously told law enforcement that High passed J.J. the gun. D.W. also acknowledged he previously testified in juvenile court that High passed the gun to J.J. As the trier of fact, the trial judge could weigh B.Y.'s testimony with the conflicts in D.W.'s testimony to determine B.Y.'s credibility. We note that "[t]he choice between credible witnesses and their conflicting testimony rests solely with the finder of fact and an appellate court may not substitute its own judgment for that of the finder of fact." State v. Awan , 22 Ohio St.3d 120, 123, 489 N.E.2d 277 (1986), citing Seasons Coal Co. ; Henkle v. Salem Mfg. Co. , 39 Ohio St. 547 (1883). In light of the foregoing, when considering the credibility of B.Y. and D.W. and resolving the conflicts in the evidence, we do not find that the trial court clearly lost its way in convicting High.

{¶ 41} Accordingly, the second assignment of error is overruled.

{¶ 42} Judgment is affirmed.

EILEEN A. GALLAGHER, A.J., and PATRICIA ANN BLACKMON, J., CONCUR


source: Caselaw Access Project

author: HALL, J.

license: Public Domain

text:
    Robert BOGART , Plaintiff-Appellant v. Michael GUTMANN, et al., Defendants-Appellees
    No. 2017-CA-27
    Court of Appeals of Ohio, Second District, Miami County.
    Rendered on June 15, 2018
    DEAN A. BACOVIN, Atty. Reg. No. 0093615, 2656 Crescent Springs Pike, Covington, Kentucky, 41017, Attorney for Plaintiff-Appellant
    NEIL F. FREUND, Atty. Reg. No. 0012183, and KELLY SCHROEDER, Atty. Reg. No. 0080637, One S. Main Street, Suite 1800, Dayton, Ohio 45402, Attorney for Defendants-Appellees
   HALL, J.

{¶ 1} The plaintiff-appellant, Robert Bogart, appeals the entry of summary judgment for the defendants-appellees, attorney Michael Gutmann and the law firm McCullough, Felger, Fite & Gutmann Co., L.P.A., on his claim of legal malpractice. We conclude that the malpractice claim is not yet ripe, and alternatively that appellant has failed to create a genuine issue of material fact that the attorney's actions caused him any damages, so we affirm.

I. Facts and Procedural History

{¶ 2} In 2008, Bogart met Bernard Kasten, who was an owner and a board member of Monroeville Industrial Moldings (MIM) and also a company called PIPO. MIM made plastic products, primarily spacer blocks for highway guardrails, and PIPO was a supply company that made plastic crumbles (ground up plastic), which MIM purchased and used to make its products. Kasten hired Bogart as an independent contractor to build special machines for MIM and to provide engineering services. Bogart was paid a weekly retainer to be available to fix manufacturing problems and paid an hourly rate for the time he spent actually working on problems. Several years later, Bogart began performing sales work for MIM. In March 2012, he and Kasten agreed that he would be paid sales commissions for opening new accounts and servicing existing accounts. Bogart's expenses were also paid, and he was given a company car to use.

{¶ 3} Later in 2012, a dispute arose about payment, and Bogart began looking for an attorney. In November, Bogart met with Gutmann and told him about three categories of claims: (1) payment of the weekly retainer and expenses, (2) payment of the hourly rate for engineering services, and (3) payment of sales commissions. According to Gutmann, Bogart's focus at their initial meeting was on the retainer and the engineering services. Bogart did not bring up the issue of unpaid sales commissions until months later, when Bogart told Gutmann that he had a separate agreement regarding sales commissions. Gutmann agreed to represent Bogart in an action against MIM for certain breaches of contract but declined to represent him on a claim for unpaid sales commissions. Gutmann did not think that the commission claim was strong enough, and Bogart did not provide supporting documentation. Gutmann explained his limited representation to Bogart in a letter. Bogart understood the limited scope of Gutmann's representation and he later told Gutmann that another attorney was handling the commissions claim.

{¶ 4} On February 1, 2013, Kasten terminated Bogart's employment with MIM. And on April 4, 2013, Gutmann filed a complaint against MIM, PIPO, and Kasten asserting claims for failure to pay a finder's fee for acquiring a rubber tire processing line, failure to pay the weekly retainer, failure to pay the hourly rate for engineering services, failure to pay a finder's fee for Bogart's efforts in acquiring tractors and trailers, and promissory estoppel. In response, MIM asserted counterclaims against Bogart for breach of contract, conversion, misappropriation of funds, and misappropriation of trade secrets.

{¶ 5} The parties eventually agreed to settle the case, and an agreed settlement entry was filed in February 2014. Under the agreement, Bogart received the company car and rights to develop a particular project, and MIM agreed to pay Bogart $14,541 over a six-month period. The monetary part of the settlement was separately reduced to a judgment entry. Bogart was only able to collect $6,000 from MIM before the company ran out of money and stopped paying him. Kasten testified that MIM and PIPO lost a combined $1,462,000 in 2014 and that the companies ceased operations in August 2015. The business assets of both companies were taken by secured creditors and sold. Currently, Bogart's judgment against MIM, including interest, stands at around $11,165. Bogart has retained an attorney to collect the rest of that judgment but has not been successful. MIM has many other creditors that have not been paid.

{¶ 6} In February 2015, Bogart met with an attorney about bringing the claim for unpaid sales commissions. By then, MIM had not made any scheduled payments on the judgment for six months. The attorney told him that the commissions claim should have been brought in the first action and could not be brought now, because it was barred by res judicata. "[Y]our only recourse," the attorney told Bogart, "is to get compensation through your attorney [Gutmann]." (Bogart Dep. 87).

{¶ 7} Rather than filing an action for commissions, Bogart filed an action for legal malpractice against Gutmann. That case was voluntarily dismissed pursuant to Civ. R. 41(A)(1) and then refiled in November 2016. The complaint alleges that Gutmann's actions made it so that Bogart cannot bring the commissions claim. Bogart asserts that the commissions claim is barred by the previous settlement agreement and by res judicata. Gutmann moved for summary judgment, arguing that neither the settlement agreement nor res judicata bars the commissions claim. He also argued that Bogart's malpractice claim is not ripe, because the commissions claim remains a viable cause of action. Gutmann lastly argued that Bogart cannot prove malpractice damages, because given that MIM is insolvent he would not have been able to recover on a judgment for unpaid sales commissions. The trial court sustained Gutmann's summary judgment motion, agreeing that neither the settlement agreement nor res judicata bars the commissions claim. The court agreed also that the malpractice claim is not ripe.

{¶ 8} Bogart appealed.

II. Analysis

{¶ 9} Bogart's three assignments of error challenge all three of the trial court's conclusions:

THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-APPELLANT BY FINDING THAT THE SETTLEMENT AGREEMENT IN THE UNDERLYING BREACH OF CONTRACT CASE WOULD NOT BAR PLAINTIFF-APPELLANT'S COMMISSIONS CLAIM.
THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-APPELLANT BY GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS WITH REGARD TO THE ISSUE OF RES JUDICATA.
THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-APPELLANT BY GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS WITH REGARD TO THE ISSUE OF RIPENESS.

{¶ 10} Summary judgment is proper under Civ.R. 56(C) if the moving party shows "(1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor." Harless v. Willis Day Warehousing Co., Inc. , 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978).

{¶ 11} Bogart argues in the first assignment of error that the settlement agreement entered in the underlying action bars him from bringing the sales-commissions claim. He points to the first sentence of the agreement, which states: "The parties to this case have reached an agreement settling all claims of each of the parties hereto and wish to incorporate that agreement into this entry as follows." (Emphasis added.) But the following sentence is found near the end of the agreement: "This agreement represents a dismissal, with prejudice, of any and all claims filed herein by all parties hereto." (Emphasis added.) These two sentences suggest different intentions. The first suggests that the agreement encompasses all claims that the parties might have against each other, which would include Bogart's claim for unpaid sales commissions. But the second sentence narrows the covered claims to only those claims filed in the action, which the commission claim was not. Given these two statements, we believe that if this issue were presented to a court in a claim by Bogart against MIM that the trial court would reasonably conclude the settlement agreement is ambiguous as to whether it covers the commissions claim and therefore the settlement agreement would not bar the commissions claim.

{¶ 12} Bogart argues in the second assignment of error that he is also barred from bringing the sales-commission claim by res judicata. "A valid, final judgment rendered upon the merits bars all subsequent actions based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action." Grava v. Parkman Twp. , 73 Ohio St.3d 379, 653 N.E.2d 226 (1995), syllabus. A "transaction" is a "common nucleus of operative facts." Id. at 383, 653 N.E.2d 226. "A settlement agreement between parties operates as res judicata to the same extent as an adjudication on the merits." MCM Funding 1997-1, Inc. v. Amware Distrib. Warehouses M & M, L.L.C. , 8th Dist. Cuyahoga No. 87041, 2006-Ohio-3326, 2006 WL 1780657, ¶ 35. See also Jammal v. American Family Ins. Grp. , N.D.Ohio Case No. 1:13 CV 437, 2015 WL 1810304 (Apr. 21, 2015) ("Ohio law holds that a settlement agreement between parties resulting in a dismissal with prejudice operates as res judicata to the same extent as an adjudication on the merits.").

{¶ 13} Res judicata is the reason that Civ.R. 13 bars a compulsory counterclaim from being brought later. Geauga Truck & Implement Co. v. Juskiewicz , 9 Ohio St.3d 12, 14, 457 N.E.2d 827 (1984). Civ.R. 13(A) makes compulsory all counterclaims "aris[ing] out of the transaction or occurrence that is the subject matter of the opposing party's claim." Under the logical-relation test, "multiple claims are compulsory counterclaims where they 'involve many of the same factual issues, or the same factual and legal issues, or where they are offshoots of the same basic controversy between the parties.' " Rettig Enterprises, Inc. v. Koehler , 68 Ohio St.3d 274, 278, 626 N.E.2d 99 (1994), quoting Great Lakes Rubber Corp. v. Herbert Cooper Co. , 286 F.2d 631, 634 (3d Cir. 1961). " Civ.R. 13(A) requires all existing claims between opposing parties that arise out of the same transaction or occurrence to be litigated in a single lawsuit, regardless of which party initiates the lawsuit." Id. "It makes no difference to the application of Civ.R. 13(A) that the opposing claim in the earlier action was a counterclaim rather than a complaint * * *." Id. at 277, 626 N.E.2d 99.

{¶ 14} Here, sales commissions were not mentioned in Bogart's complaint against MIM and an argument could be made that based on the complaint alone, res judicata does not bar the unpled commissions claim. But MIM's counterclaim makes allegations related to the time when Bogart was being paid sales commissions. In the second of the counterclaims, MIM alleges:

6. In connection with Plaintiff's engagement by Monroeville as an independent contractor, Plaintiff was afforded the use of a company debit and credit card and company car.
7. Plaintiff was permitted to use these items in furtherance of the objectives of Monroeville, but instead engaged in numerous personal expenditures and use of the company car on personal trips.
8. Monroeville, by and through Defendant Kasten, communicated with Plaintiff on this subject by a letter dated February 1, 2013, a true and accurate copy of which is attached hereto as Exhibit A.
9. Plaintiff's misuse of these benefits was wrongful, and Monroeville has been damaged in an amount to be determined at trial by Plaintiff's misconduct.

The referenced letter informs Bogart that his employment is being terminated. The letter talks about the compensation arrangement, including that Bogart received a set amount of money each week, was allowed to use a company car, and was reimbursed for work-related expenses.

{¶ 15} Plainly, the sales-commissions claim existed at the time of the underlying action. And in our view the commissions claim arises out of the transaction, the employment compensation relationship, on which the counterclaim is based. The commissions claim involves many of the same factual issues and is basically an offshoot of the same basic controversy between the parties. Therefore, regardless of whether Bogart was required to bring the claim for sales commissions in the original complaint of the litigation against MIM, in light of the counterclaim, the commissions claim is a compulsory response and all of the compensation claims between the parties were required to be joined. If a trial court were to consider this issue in a claim by Bogart against MIM, in our opinion that trial court would reasonably conclude the commissions claim was barred by res judicata because of Civ.R. 13(A), ("A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim"). To that extent, we disagree with the trial court's conclusion that res judicata does not bar the commissions claim. Nonetheless, we perceive that conclusion to be premature as discussed below.

{¶ 16} We agree with the trial court and disagree with Bogart's argument in the third assignment of error that his legal malpractice claim is ripe for review. For this reason we have not definitively determined whether the commissions claim is barred by either the settlement agreement or by res judicata, because a determination of either issue in this case would not control in an action on the commission-claim. MIM is not a party to this case and the manner to determine whether the settlement or res judicata support Bogart's contention that Gutmann failed to preserve the commission claim is to bring the commission-claim action.

{¶ 17} "In order to be justiciable, a controversy must be ripe for review." Keller v. Columbus , 100 Ohio St.3d 192, 2003-Ohio-5599, 797 N.E.2d 964, ¶ 26. Ripeness is an issue of timing: " 'the time for judicial relief is simply not yet arrived, even though the alleged action of the defendant foretells legal injury to the plaintiff.' " State ex rel. Elyria Foundry Co. v. Indus. Comm. , 82 Ohio St.3d 88, 89, 694 N.E.2d 459 (1998), quoting Comment, Mootness and Ripeness: The Postman Always Rings Twice , 65 Colum.L.Rev. 867, 876 (1965). " 'A claim is not ripe for our consideration if it rests on contingent future events that may not occur as anticipated or may never occur at all.' " U.S. Bank, N.A. v. 2900 Presidential Drive, L.L.C. , 2d Dist. Greene No. 2013 CA 60, 2014-Ohio-1121, 2014 WL 1339643, ¶ 32, quoting State v. Loving , 180 Ohio App.3d 424, 2009-Ohio-15, 905 N.E.2d 1234, ¶ 4 (10th Dist.), citing Texas v. United States , 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998).

{¶ 18} Here, we simply do not know what would happen in an action for the unpaid commissions. MIM, apparently now defunct, may not respond to the complaint, handing Bogart a default judgment. If there is a response, it could fail to assert res judicata as an affirmative defense, waiving the defense. In the end, Bogart's speculation that, in a new action a court would conclude that his commissions claim is barred by both the settlement agreement and res judicata is insufficient to demonstrate a present, justiciable controversy. Accordingly we agree that the malpractice claim is premature and that on this record Bogart cannot prove the case within the case that he was deprived of his commissions claim by the actions of his attorney Gutmann. The third assignment of error is overruled.

{¶ 19} Alternatively, even if the issue were ripe, we believe that summary judgment is proper on Bogart's legal malpractice claim because he fails to show a genuine issue that he has suffered damages. "To establish a cause of action for legal malpractice, a plaintiff must show 'the existence of an attorney-client relationship giving rise to a duty, a breach of that duty, and damages proximately caused by that breach.' " Ratonel v. Roetzel & Andress, L.P.A. , 147 Ohio St.3d 485, 2016-Ohio-8013, 67 N.E.3d 775, ¶ 6, quoting New Destiny Treatment Ctr., Inc. v. Wheeler , 129 Ohio St.3d 39, 2011-Ohio-2266, 950 N.E.2d 157, ¶ 25. Gutmann argues in his motion for summary judgment that even if he did negligently represent Bogart, Bogart suffered no damages as a result because Bogart would not have been able to collect on a judgment for unpaid sales commissions. Although the trial court made reference to this issue in its decision it did not rule on it. But, we review summary judgment de novo. Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). "An appellate court can decide an issue on grounds different from those determined by the trial court, so long as the evidentiary basis upon which the appellate court relies was addressed before the trial court and is a matter of record." Wodrich v. Federal Ins. Co. , 2d Dist. Greene No. 02CA3, 2002-Ohio-5122, 2002 WL 31151603, ¶ 19, citing State v. Peagler , 76 Ohio St.3d 496, 668 N.E.2d 489 (1996).

{¶ 20} "[C]ollectibility is an element of the plaintiff's case that must be proved by the plaintiff." Paterek v. Petersen & Ibold , 118 Ohio St.3d 503, 2008-Ohio-2790, 890 N.E.2d 316, ¶ 39. "The finest attorneys in the world cannot coax blood from a stone." Id. at ¶ 31. Which is why "[i]n proving what was lost, the plaintiff must show what would have been gained." Id. at ¶ 37. The plaintiff in a legal malpractice case "must prove a causal connection between the attorney's malpractice and their damages." Id. at ¶ 39. Here, Gutmann's expert, Thomas Whelley, opined that "[a]ssuming the Companies are out of business, have no assets or substantial judgment debtors with priority are in a superior position to plaintiff's claim, he has suffered no damages." The evidence supports this opinion. Bogart has been able to collect only $6,000 of the settlement agreement with MIM. And no evidence suggests that he will be able to collect the rest. According to Kasten, MIM ran out of money in 2014, before it was able to pay the settlement judgment, and in August 2015 it ceased operating. All the company's assets were taken by secured creditors and sold. Bogart is not the only creditor waiting for payment. According to Kasten, MIM has many outstanding liabilities, like $80,000 in taxes, $180,000 owed to one company, and numerous other judgments against it.

{¶ 21} Bogart did not provide evidence of an opinion on damages contrary to that of Gutmann's expert. Instead, Bogart responded in his opposition to summary judgment that MIM was not insolvent in February 2014 when the settlement agreement was entered. He says that it was not until much later that MIM was liquidated. The company was liquid in 2014, says Bogart, and its assets would have been available for him to collect. His argument ignores the fact that to this day he has never filed suit on the commission claim and when he met with an attorney to pursue the commissions claim in February 2015, MIM had not paid on the settlement judgment for six months and was already insolvent and there was no chance of collection on the commission claim regardless of viability. There is no evidence to show that Gutmann proximately caused Bogart's claimed damages.

{¶ 22} The evidence in the record suggests that Bogart could not collect a judgment for unpaid sales commissions and Bogart has not presented evidence to the contrary. We conclude the commissions claim is uncollectable and there is no genuine issue as to whether Gutmann proximately caused the damages that Bogart claims he suffered. Consequently summary judgment on Bogart's legal malpractice claim is appropriate for that reason also.

III. Conclusion

{¶ 23} The three assignments of error presented are overruled. The trial court's judgment is therefore affirmed.

FROELICH, J., and TUCKER, J., concur.

      Whelley's opinions are attached to Gutmann's responses to Bogart's interrogatories, specifically, an interrogatory asking Gutmann to state the opinions to which Whelley would testify at trial. The responses and opinions are attached to an authenticating affidavit attached to Gutmann's motion for summary judgment.


author: HORTON, J.

text:
    Blanca Santos GONZALEZ, Plaintiff-Appellant, v. Pedro Ovidio RODRIGUEZ, Defendant-Appellee.
    No. 17AP-136
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on June 21, 2018
    On brief: Advocates for Basic Legal Equality, Inc., and Jessica A. Ramos, for appellant. Argued: Jessica A. Ramos.
    DECISION
   HORTON, J.

{¶ 1} Plaintiff-appellant, Blanca Santos Gonzalez, filed a complaint for allocation of custody in the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, seeking "legal custody"

of her minor child, E.S., and asking the trial court to make findings of fact to allow E.S. to petition the federal government for status as a Special Immigrant Juvenile under 8 U.S.C. 1101(a)(27)(j). She now appeals from the trial court's decision declining to make the requested findings. For the following reasons, we affirm.

{¶ 2} Santos Gonzalez filed a complaint for allocation of custody on January 11, 2016, asking the court for "legal custody" of E.S., who was born on May 1, 2001. She subsequently filed an amended complaint on May 23, 2016. Santos Gonzalez alleged that E.S. was her biological child, and that he had resided with her in Columbus since February 2015. Santos Gonzalez also alleged that E.S.'s biological father was Pedro Ovidio Rodriguez, who was in El Salvador, had never supported E.S., and had not been in contact with him since 2005. She claimed that E.S.'s father had "abandoned and neglected the child within the meaning of O.R.C. § 3127.01(B)(1) and O.R.C. § 2151.03(A)(1)." (Jan. 11, 2016 Compl.) E.S. had come to the U.S. in January 2015 to escape the "extreme poverty and widespread gang violence" in El Salvador, and "to reunify with his mother." Id. In the prayer for relief, Santos Gonzalez asked the juvenile court to grant her legal custody of E.S. and to "[m]ake findings of fact necessary for [E.S.] to petition for Special Immigrant Juvenile Status." Id. Specifically, she asked for the juvenile court to make findings in accordance with the definition of a Special Immigrant Juvenile under 8 U.S.C. 1101(a)(27)(J). (Jan. 11, 2016 Compl.; May 23, 2016 Am. Comp.)

{¶ 3} At a hearing, the magistrate questioned Santos Gonzalez about E.S., her parenting history, and her financial circumstances. She testified that it had been eight years since E.S. had contact with his father and that E.S. had been living with her for the previous year and one-half. Santos Gonzalez's attorney then asked the juvenile court to make "two additional findings" not addressed by the questioning: "that reunification of the minor child with his father is not viable due to abandonment and that it is not in the child's best interest to return to El Salvador." (Aug. 31, 2016 Tr. at 11-12.)

{¶ 4} The magistrate filed a decision on September 14, 2016, stating findings of fact and conclusions of law. The magistrate found that E.S. had been born in El Salvador and that his putative father had left when he was four; that Santos Gonzalez had supported E.S. before his arrival in the U.S. and was currently supporting him; that Santos Gonzalez feared for E.S.'s safety if he returned to El Salvador; and that it was "in the best interest of the child to remain in the custody of the Mother." (Sept. 14, 2016 Decision at 3.) However, the magistrate stated that she was "unable" to make the other additional findings that Santos Gonzalez had requested. Id.

{¶ 5} Santos Gonzalez filed an objection to the magistrate's failure to make the additional findings. (Sept. 29, 2016 Objs. to Mag.'s Decision.) In a decision overruling the objection, the trial court stated that it was "unable to make the requested findings" under 8 U.S.C. 1101(a)(27)(J) because:

The minor child in this case has not been declared dependent by a juvenile court, and he has never been committed to or placed under the custody of an agency or department of a State. The Court finds that the minor child is not abandoned, abused or neglected, as he is currently in the custody of his mother.
Finally, while the Court may agree that it is in the minor child's best interest to live in the United States and go to school as opposed to being returned to El Salvador, the fact that the federal statute is cumulative precludes the Court from making the findings requested by Plaintiff.

(Jan. 20, 2017 Jgmt. Entry at 2.)

{¶ 6} Santos Gonzalez has appealed and asserts three assignments of error:

[I.] The trial court erred as a matter of law by denying and dismissing Appellant's objections.
[II.] The trial court erred as a matter of law in determining [that] the child had not been abandoned by his father.
[III.] The trial court erred as a matter of law by denying Appellant an opportunity to address the objections at the Hearing.

{¶ 7} In the first assignment of error, Santos Gonzalez argues that the juvenile court erred by denying and dismissing her objection. She argues that the juvenile court failed to read 8 U.S.C. 1101(a)(27)(J)"in its entirety" when it failed to make the findings she had requested. (Appellant's brief at 6.)

{¶ 8} Special Immigrant Juvenile ("SIJ") status under 8 U.S.C. 1101(a)(27)(J)"provides certain alien minors with a special immigration classification that may lead to permanent residency." Young Zheng v. Pogash , 416 F.Supp.2d 550, 552 (S.D.Tex.2006). To qualify for SIJ status, the juvenile must submit a petition to the United States Citizen and Immigration Services ("USCIS") with a declaration from a juvenile court demonstrating that the juvenile meets the statutory definition. Under 8 U.S.C. 1101(a)(27)(J), a SIJ is defined as:

[A]n immigrant who is present in the United States-
(i) who has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States, and whose reunification with 1 or both of the immigrant's parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law;
(ii) for whom it has been determined in administrative or judicial proceedings that it would not be in the alien's best interest to be returned to the alien's or parent's previous country of nationality or country of last habitual residence; and
(iii) in whose case the Secretary of Homeland Security consents to the grant of special immigrant juvenile status.

{¶ 9} The juvenile court's declaration must satisfy the first two prongs of 8 U.S.C. 1101(a)(27)(J) to constitute prima facie evidence of the juvenile's eligibility for SIJ classification. 8 C.F.R. 204.11(d) ; Young Zheng at 554.

{¶ 10} Santos Gonzalez argues that the trial court erred because it "truncated the statutory definition" by ignoring the provision for "an individual or entity appointed by a State or juvenile court located in the United States." (Appellant's brief at 8); 8 U.S.C. 1101(a)(27)(J)(i). Thus, she believes that trial court "erred by not reading the complete language of the statute." (Appellant's brief at 8.)

{¶ 11} Although the trial court did not expressly consider the statutory language quoted by Santos Gonzalez, it was not error to do so because the evidence does not demonstrate that E.S. met the definition under 8 U.S.C. 1101(a)(27)(J). The first prong contains two requirements. The first requirement is a showing of dependency or custody with or overseen by a state agency. This may be met if the juvenile has (1) "been declared dependent on a juvenile court located in the United States," (2) the juvenile has been "legally committed to, or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States." Here, E.S. has not been declared dependent in a juvenile court. Nor did the trial court legally commit or place him under the custody of a state agency.

{¶ 12} Santos Gonzalez argues that the definition applies because the trial court's allocation of custody shows that E.S. was "placed under the custody of * * * an individual or entity appointed by a State or juvenile court located in the United States." 8 U.S.C. 1101(a)(27)(J)(i). But Santos Gonzalez was not an individual "appointed by a State or juvenile court." She came to the trial court and petitioned it for an allocation of custody. Her interpretation of the language of the statute suggests that a juvenile need only be in the custody of any "individual," but the plain language of the statute requires that an individual or entity be "appointed" by a juvenile court.

{¶ 13} Even if the circumstances of E.S.'s custody had fulfilled the first requirement of 8 U.S.C. 1101(a)(27)(J)(i), the second requirement of that provision was not met. Evidence must show that the juvenile's "reunification with 1 or both of the immigrant's parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law." 8 U.S.C. 1101(a)(27)(J)(i). Thus, a child who is reunified with a parent will not meet this definition. See Boyron v. Lynch , 604 F.Appx. 72, 74 (2d Cir.2015) (holding that child did not "demonstrate prima facie eligibility" under 8 U.S.C. 1101(a)(27)(J) where the state court order only granted the applicant's cousin a "voluntary conservatorship" and the applicant did not "demonstrate that reunification with his mother was not viable-indeed, [his] mother continued to live with him at his cousin's house in Connecticut"). Here, E.S. and his mother were reunified, a circumstance that the trial court recognized. Because neither requirement of 8 U.S.C. 1101(a)(27)(J)(i) was met, the trial court did not err by dismissing the objection to the magistrate's refusal to make the requested findings. Accordingly, the first assignment of error is overruled.

{¶ 14} In the second assignment of error, Santos Gonzalez posits that the trial court erred by not determining that E.S.'s father had abandoned him under either the definition in R.C. 3127.01(B)(1) or 2151.011(C).

{¶ 15} Santos Gonzalez filed a complaint for an allocation of custody, which is governed by the standards of R.C. 3109.04. In particular, the custody determination is governed by "the best interest" of the child. R.C. 3109.04(B)(1). The trial court fulfilled its obligation to make a determination under this standard when it adopted the magistrate's decision stating that it was in the "best interest" of E.S. to designate Santos Gonzalez the residential parent and legal custodian, and noted that his putative father had "no contact with the child for eight years." (Sept. 14, 2016 Decision at 3.) The trial court did not err when it declined to expressly determine that the putative father had "abandoned" E.S. Furthermore, the definition of "abandoned" in R.C. 3127.01(B)(1) only applies to the Uniform Child Custody Jurisdiction and Enforcement Act codified in R.C. 3127.01 through 3127.53. R.C. 3127.01(B). In addition, the definition of an abandoned child under R.C. 2151.011(C) applies to the provisions of the juvenile code under Chapter 2151, such as abandonment leading to a determination of neglect under R.C. 2151.03. The trial court did not err in failing to apply these standards to a request for an allocation of custody under R.C. 3109.04. Accordingly, the second assignment of error is overruled.

{¶ 16} In her third assignment of error, Santos Gonzalez argues the trial court erred by failing to allow her an opportunity to address the merits of her objections at the hearing the trial court conducted on her objections. During the November 15, 2016 hearing, the trial court expressed some concern that Santos Gonzalez had not provided an affidavit adequately describing reasonable diligence to ascertain the putative father's whereabouts before resorting to service by publication. The trial court engaged in a discussion with Santos Gonzalez's counsel stating Santos Gonzalez could either withdraw her objections and let the order stand as is, or she could continue with her objections but the trial court would have to void the magistrate's order for lack of service. Counsel for Santos Gonzalez declined to withdraw the objections. Thus, the trial court concluded the hearing without hearing any arguments on the merits of the objections.

{¶ 17} However, when the trial court issued its judgment entry on January 20, 2017, the trial court did not void the magistrate's decision for lack of service but instead considered the merits of Santos Gonzalez's objections before denying and dismissing the objections. The trial court made no mention of any issue with service.

{¶ 18} Santos Gonzalez now asserts it was error for the trial court to rule on her objections without affording her a proper hearing. However, under Civ.R. 53(D)(4)(d), a trial court is not required to hold a hearing prior to ruling on a party's objections to a magistrate's decision; instead, a trial court has discretion to hold a hearing before ruling on the objections. Civ.R. 53(D)(4)(d) ; Reed v. Turner , 10th Dist. No. 14AP-400, 2014-Ohio-5109, 2014 WL 6436524, ¶ 22 ; and Losey v. Diersing , 12th Dist. No. CA2012-06-048, 2013-Ohio-1108, 2013 WL 1196674, ¶ 14. Santos Gonzalez has not demonstrated that the trial court abused its discretion when it ruled on her objections to the magistrate's decision without affording her a full hearing on the substance of her objections. Accordingly, the third assignment of error is overruled.

{¶ 19} Having overruled all three assignments of error, we affirm the decision of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch.

Judgment affirmed.

LUPER SCHUSTER and BRUNNER JJ., concur.


author: WAITE, J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Dorina SHINE, Defendant-Appellant.
    No. 16 MA 0116
    Court of Appeals of Ohio, Seventh District, Mahoning County.
    Dated: June 21, 2018
    Atty. Paul J. Gains, Mahoning County Prosecutor and Atty. Ralph M. Rivera, Assistant Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503, for Plaintiff-Appellee
    Atty. Edward A. Czopur, DeGenova & Yarwood, Ltd., 42 North Phelps St., Youngstown, Ohio 44503, for Defendant-Appellant.
    BEFORE: Cheryl L. Waite, Gene Donofrio, Carol Ann Robb, Judges.
    OPINION AND JUDGMENT ENTRY
   WAITE, J.

{¶ 1} On June 15, 2016, Appellant Dorina Shine was convicted of one count of felonious assault in violation of R.C. 2903.11(A)(1), (D), a felony of the second degree and three counts of felonious assault, in violation of R.C. 2903.11(A)(2), (D), felonies of the second degree. On July 22, 2016, Appellant was sentenced to a four-year prison term. The convictions stem from an incident that occurred at the T.G.I. Friday's restaurant in Boardman Township, Ohio on March 23, 2011.

{¶ 2} Appellant timely raises three assignments of error on appeal. First, she alleges the trial court abused its discretion in admitting a report regarding Appellant's competency to stand trial without a witness being available to testify. Second, Appellant contends the trial court abused its discretion in finding Appellant competent to stand trial after the February 10, 2014 competency hearing because the judge considered the testimony of only one of two expert witnesses. Lastly, Appellant contends the trial court erred in failing to hold another competency hearing when the issue of competency was raised on the day of trial. Based on the following, Appellant's assignments of error are without merit and the judgment of the trial court is affirmed.

Factual and Procedural History

{¶ 3} On March 23, 2011, after smoking marijuana and drinking alcohol, Appellant entered the T.G.I. Friday's restaurant in Boardman Township, Ohio. Appellant approached the bar and asked for food.

When she was told she would have to sit and place an order, Appellant became enraged and began shouting and berating a bartender and other employees. Appellant also began picking up bottles from the bar and throwing them at individuals. A customer approached and attempted, along with restaurant employees, to restrain Appellant. Appellant subsequently fractured the customer's skull with a bottle.

{¶ 4} On March 31, 2011, Appellant was indicted on one count of felonious assault in violation of R.C. 2903.11(A)(1), (D), a felony of the second degree and three counts of felonious assault in violation of R.C. 2903.11(A)(2), (D), felonies of the second degree. Appellant entered pleas of not guilty and not guilty by reason of insanity.

{¶ 5} Appellant filed a suggestion of incompetence to stand trial on June 17, 2013. The trial court ordered an evaluation and stayed all proceedings pending the result. Dr. Thomas Gazley ("Gazley") performed the first evaluation of Appellant and issued a report opining that Appellant was incompetent to stand trial. The state requested a second evaluation, which was granted by the trial court. The second evaluation was conducted by Dr. Brian Welsh ("Welsh"). In a report issued by Welsh, he concluded that Appellant was competent to stand trial. A competency hearing was held on February 10, 2014. Testimony was provided by both Gazley and Welsh. Appellant's trial counsel also made a proffer to the court on the issue of Appellant's competency. The trial court subsequently issued a judgment entry determining that Appellant was competent to stand trial. Appellant filed an appeal to this Court. State v. Shine , 7th Dist. No. 14 MA 36 (June 13, 2014). In addition to being untimely, this Court dismissed the appeal, as an order finding a defendant competent to stand trial is not a final order pursuant to R.C. 2505.02. Id.

{¶ 6} Appellant subsequently filed a motion for findings of fact and conclusions of law in the trial court regarding the trial court's competency finding. On December 2, 2014, the trial court filed a judgment entry incorporating the findings of fact and conclusions of law. Included in this entry was a finding that testimony established that the claimed altered mental state on the date of the charged offense was self-induced by Appellant, because she voluntarily smoked marijuana and drank alcohol immediately prior to engaging in the conduct alleged in the indictment. Appellant did not appeal that entry.

{¶ 7} The parties appeared for a pretrial conference on April 20, 2015. The state indicated that Crim.R. 11 negotiations had been taking place and that a final Crim.R. 11 plea offer had been made to Appellant. At the hearing, trial counsel requested a moment to confer with Appellant. On returning to the record, trial counsel explained that he had an opportunity to share the state's proposal with Appellant but that she rejected it. Appellant verbally confirmed her rejection of the Crim.R. 11 offer with the trial court. Trial counsel again addressed the issue of Appellant's competency and requested another competency hearing. Counsel noted that Appellant refused to confer with him about her trial testimony. He stated that he was unsure whether her unwillingness stemmed from her lack of desire or her inability to cooperate. The state objected to the request based on the two prior competency evaluations of Appellant. Recognizing that the request was being made before trial, the trial court ordered another competency evaluation of Appellant with a psychologist chosen by both parties.

{¶ 8} A third evaluation of Appellant was performed on July 9, 2015, by Summit Psychological Associates ("Summit"). The evaluation was conducted by Aviva Moster and signed off on by James A. Orlando, Ph.D. ("Orlando"). The report from Summit concluded that Appellant was competent to stand trial.

{¶ 9} On October 5, 2015, Appellant's trial counsel filed a motion for an appropriation of funds regarding the Summit evaluation. Trial counsel sought funds to have the psychologist who had performed the third evaluation appear in court to testify. Orlando had informed trial counsel that he would not appear to testify unless compensated, and Appellant's indigency had been established.

{¶ 10} A second competency hearing was held on October 14, 2015. The trial court had not yet ruled on counsel's motion for the appropriation of funds. At the hearing, counsel reiterated his motion for appropriation of funds in order to have Orlando appear to testify about his evaluation of Appellant's competency. Counsel also discussed the portions of the Summit competency evaluation that appeared to warrant examination under oath although the report ultimately concluded Appellant was competent to stand trial. The trial court noted that Appellant had been evaluated multiple times and that two other experts had previously testified as to her competency. The court also addressed the Summit report, highlighting that it concluded that Appellant was able to understand the legal process and her rights in the process, and was capable of communicating effectively with her attorney. Moreover, the court noted that the Summit report concluded with reasonable scientific certainty that Appellant was competent to stand trial. The trial court stated that it was "satisfied---takes judicial notice, has requested and received, to my satisfaction, a certified report directly to the court." (10/14/15 Tr., p. 12.) The judge stated that he read the report and that it was consistent with previous reports indicating that Appellant was competent to stand trial. The trial court concluded that to grant the request for appropriation of funds would be an unnecessary burden and "of no value." (10/14/15 Tr., p. 12.) At the hearing, the court found that Appellant was competent and ordered a trial date be set in the matter. The court memorialized those findings in a judgment entry dated October 23, 2015. Appellant filed a second appeal with this Court. State v. Shine, 7th Dist. No. 15 MA 0210, 2016-Ohio-1445, 2016 WL 1301304.

{¶ 11} Appellant argued on appeal that a judgment entry finding a criminal defendant competent to stand trial is a final, appealable order under the Supreme Court's decision in State v. Anderson, 138 Ohio St.3d 264, 2014-Ohio-542, 6 N.E.3d 23. In Anderson, the Ohio Supreme Court held that an order which denied a motion to dismiss on double jeopardy grounds is a final, appealable order. It concluded a criminal defendant would not be afforded a meaningful review of an adverse decision because the double jeopardy clause not only serves as a protection against being punished twice for the same offense but also protects against being tried twice for the same offense. We found Appellant's Anderson argument unpersuasive and ruled that an order finding a criminal defendant competent to stand trial did not implicate double jeopardy considerations. Appellant also argued that a conviction of a defendant not legally competent to stand trial has due process implications. Appellant relied on cases where the criminal defendant was never afforded an opportunity to raise the issue of competency before trial. These cases in no way held that a criminal defendant has a right to immediately appeal a trial court's competency finding. We concluded that R.C. 2945.37 and R.C. 2945.371 set forth a comprehensive procedure for a trial court to follow if a criminal defendant's competency is at issue and that Appellant's due process rights were adequately protected. We noted that Appellant was afforded multiple competency evaluations and hearings, and that the trial court had issued findings of fact and conclusions of law in the matter. We dismissed this second appeal, again concluding that a competency determination by the trial court is not a final, appealable order because a criminal defendant is "afforded a meaningful and effective remedy by way of appeal" after the entire matter is resolved in the trial court. State v. Shine, 7th Dist. No. 15 MA 0210, 2016-Ohio-1445, 2016 WL 1301304, ¶ 9.

{¶ 12} The case proceeded to a jury trial on June 13, 2016. The state produced a number of witnesses who each gave similar accounts of Appellant's behavior after entering the restaurant: that she become enraged and attacked a number of people with liquor bottles. Appellant testified in her own defense, but stated that she had no clear recollection of the night's events. The jury found Appellant guilty on all charges and the court sentenced Appellant to a four-year prison term on the four counts of felonious assault. Appellant filed this timely appeal raising three assignments of error. We will address the assignments in nonsequential order for the purposes of clarity.

ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ABUSED ITS DISCRETION, AND IN SO DOING DENIED APPELLANT DUE PROCESS OF LAW PURSUANT TO BOTH THE OHIO AND UNITED STATES CONSTITUTIONS, IN FINDING APPELLANT COMPETENT TO STAND TRIAL FOLLOWING THE FEBRUARY 10, 2014 WHEREAT THE TRIAL COURT ONLY CONSIDERED ONE OF THE TWO EXPERT WITNESSES' TESTIMONY.

Competency to Stand Trial

{¶ 13} As the Ohio Supreme Court has held, "[f]undamental principles of due process require that a criminal defendant who is legally incompetent shall not be subjected to trial." State v. Berry, 72 Ohio St.3d 354, 359, 650 N.E.2d 433 (1995). In Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960), the United States Supreme Court employed the test to determine if a criminal defendant is, in fact, competent to stand trial:

[T]he test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding-and whether he has a rational as well as factual understanding of the proceedings against him.

Id.

{¶ 14} The right to a hearing on the issue of competency rises to the level of a constitutional guarantee: when the record contains, "sufficient indicia of incompetence," an inquiry into the defendant's competency is necessary to ensure his right to a fair trial. Berry , supra, at 359, 650 N.E.2d 433, quoting Drope v. Missouri , 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975).

{¶ 15} Ohio recognizes the right of a criminal defendant not to be tried or convicted of a crime while incompetent as codified in R.C. 2945.37(B) :

In a criminal action in a court of common pleas, a county court, or a municipal court, the court, prosecutor, or defense may raise the issue of the defendant's competence to stand trial. If the issue is raised before the trial has commenced, the court shall hold a hearing on the issue as provided in this section. If the issue is raised after the trial has commenced, the court shall hold a hearing on the issue only for good cause shown or on the court's own motion.

{¶ 16} R.C. 2945.37(G) also reads:

A defendant is presumed to be competent to stand trial. If, after a hearing, the court finds by a preponderance of the evidence that, because of the defendant's present mental condition, the defendant is incapable of understanding the nature and objective of the proceedings against the defendant or of assisting in the defendant's defense, the court shall find the defendant incompetent to stand trial and shall enter an order authorized by section 2945.38 of the Revised Code.

{¶ 17} A defendant who lacks the capacity to understand the nature and object of the proceedings against her, to consult with counsel, and to assist in preparing her defense may not be subjected to a trial. State v. Smith , 89 Ohio St.3d 323, 329, 2000-Ohio-166, 731 N.E.2d 645. As noted in the statute, there is a presumption of competency to stand trial. If, after a hearing, the trial court finds by a preponderance of the evidence that, due to the defendant's present mental condition, she is incapable of understanding the nature and objective of the proceedings or of assisting in her own defense, the court must find that she is incompetent to stand trial. R.C. 2945.37(G).

{¶ 18} Under due process principles, the standard for a determination of competency to stand trial is the same as the standard for determining competency to enter a guilty plea or a plea of no contest. State v. Bolin, 128 Ohio App.3d 58, 61-62, 713 N.E.2d 1092 (8th Dist.1998).

{¶ 19} In reviewing a trial court's determination of competency, we must examine whether the conclusion was supported by competent, credible evidence. State v. Hicks , 43 Ohio St.3d 72, 79, 538 N.E.2d 1030 (1989). Determining the adequacy of the data on which the experts relied and determinations of credibility where there is a divergence of opinions between experts are matters to be undertaken by the trial judge. The weight given the evidence and the credibility of the witnesses are primarily for the trial court. State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), syllabus. The judge's decision on competency will not be disturbed absent an abuse of discretion. State v. Vrabel , 99 Ohio St.3d 184, 2003-Ohio-3193, 790 N.E.2d 303, ¶ 33.

{¶ 20} In her second assignment of error, Appellant alleges the trial court erred in considering the testimony of only one of the two experts who testified to their findings at the first competency hearing held on February 10, 2014. Appellant acknowledges that her competency was most thoroughly considered at this hearing. Testimony was provided by two experts, Gazley and Welsh, both of whom had evaluated Appellant to determine her competency to stand trial. Gazley opined that Appellant was not competent to stand trial, while Welsh determined that Appellant was competent. Gazley concluded that Appellant suffered from mood disorder and could not adequately consider plea offers from the state. Welsh opined that Appellant had adjustment disorder and mixed anxiety and depressed mood, but did not show evidence that her condition would impede competency or her ability to work with counsel on her own defense. The trial court adopted the opinion of Welsh and included that determination in the trial court judgment entry. Appellant acknowledges in her brief that determinations on the credibility of witnesses and the ability to weigh evidence are within the discretion of the trial court, but proceeds to discuss the weight of the evidence and contends that the trial court erred in solely relying on Welsh's testimony in making its determination.

{¶ 21} Citing State v. Merryman, 4th Dist. No. 12CA26, 2013-Ohio-4810, 2013 WL 5914864, as an analogous case, Appellant argues the trial court in Merryman fully considered the opinions of both experts before making a determination on competency to stand trial whereas, in the instant matter, the trial court only referred to Welsh's testimony. Hence, Appellant assumes only Welsh's testimony was considered by the court.

{¶ 22} At the February 10, 2014 hearing, both experts testified extensively as to their evaluations. Gazley testified that he evaluated Appellant on July 11, 2013 and that Appellant was fully aware of the court process due to her education. Appellant has a master's degree in criminal justice and was currently working on her doctorate. Gazley acknowledged there was very little Appellant did not understand about the process. He testified that she would get extremely irritated at his questioning and refuse to cooperate. At an earlier interview for a determination on sanity Appellant seemed forthcoming and cooperative, however during this evaluation she had "an air of distrust about her." (2/10/14 Tr., p. 9.) Gazley also testified that Appellant spent the second half of the interview discussing "abstract concepts, justice and injustice and fairness and unfairness" which he felt may present an issue when assisting with her own defense. (2/10/14 Tr., pp. 11-12.) He also noted that Appellant's insistence on having a jury trial was due to the fact that she could not seem to decide for herself whether she committed the offense and stated that she needed the jury to answer that question for her. (2/10/14 Tr., pp. 13-14.) Appellant has contended she blacked out and had no recollection of any event that occurred after she entered the restaurant, and admitted she consumed both marijuana and alcohol prior to the incident. Finally, Gazley testified that he had diagnosed Appellant with a general mood disorder. Appellant oftentimes was coherent and provided relevant information, but other times he "seriously questioned her rational thought process because she had difficulty considering the specifics of a question asked, even though the question might be very, very simplistic." (2/10/14 Tr., pp. 35-36.) Gazley testified on both direct and cross-examination and was then examined by the trial court. The trial court asked in what way Gazley felt Appellant would be unable to assist in her own defense and whether her refusal to cooperate was more a product of her stubbornness or that she was actually unable to cooperate. The trial court also inquired about Gazley's conclusion that if given medication and treatment for one year, Appellant could dramatically improve in terms of her ability to make rational decisions about her defense.

{¶ 23} Welsh also provided testimony regarding his evaluation of Appellant's competency. He testified that he evaluated Appellant on October 21, 2013, approximately three months after Gazley's evaluation. Appellant stated that she was attempting to get her doctorate in criminal justice and ran her own nonprofit organization. She also took care of her two grandchildren and her 15 year old daughter. Welsh testified that Appellant seemed cooperative and friendly during her evaluation. She was forthcoming and provided a great deal of extra detail to the questions asked. Welsh testified that he saw no evidence of psychosis, mania or depression. Appellant was aware of the legal process and the advantages and disadvantages of accepting the state's plea agreement. (2/10/14 Tr., p. 62.) He noted that Appellant could not remember "all the aspects of her version of the events due to what she reported as being either a blackout or amnesia." (2/10/14 Tr., p. 63.) While Welsh diagnosed her with adjustment disorder with mixed anxiety and depressed mood, Welsh opined that Appellant did not suffer from any severe mental illness or defect and that she understood the nature and the objectives of the proceedings against her and was able to cooperate with her attorney in her defense. (2/10/14 Tr., pp. 66-67.)

{¶ 24} At the conclusion of the experts' testimony, trial counsel proffered his own testimony regarding Appellant's competency. He addressed his difficulty in having discussions with Appellant about the strategy of going to trial as she would go off into "abstractions" and it was difficult to get her to return to the discussion at hand. (2/10/14 Tr., p. 86). He also noted that Appellant felt she had already spent time in jail and thus, had already been punished for the crime. There was extensive discussion back and forth between trial counsel and the court regarding whether Appellant was unable or simply unwilling to cooperate with counsel in her own defense.

{¶ 25} It should be noted that at the time of the hearing, Gazley had not seen Appellant for approximately eight months and Welsh had seen her five months earlier. Competency to stand trial is a present condition, and the time duration between evaluation and the hearing testimony may be a factor to be considered. Dusky , supra. The record reveals the trial court heard extensive testimony from both experts on their findings and conclusions regarding Appellant's competency as well as testimony from trial counsel. The trial court engaged in a lengthy dialogue with counsel regarding concerns about Appellant's mental state and competency to stand trial. Although the trial court may have referred only to Welsh's testimony in the judgment entry, a review of the record before us reflects the trial court extensively questioned both experts and reviewed both evaluations. The decision was supported by competent, credible evidence. The trial court did not abuse its discretion in deciding Appellant was competent to stand trial following the February 10, 2014 competency hearing. Appellant's second assignment of error is without merit and is overruled.

ASSIGNMENT OF ERROR NO. 1
APPELLANT WAS DENIED DUE PROCESS OF LAW PURSUANT TO BOTH THE OHIO AND UNITED STATES CONSTITUTIONS WHEN SHE WAS DENIED THE ABILITY TO PRESENT EVIDENCE AGAINST COMPETENCY AND/OR WHEN THE TRIAL COURT ALLOWED AN EXPERT REPORT WITHOUT A TESTIFYING WITNESS.

{¶ 26} In her first assignment of error Appellant contends the trial court erred in admitting the Orlando evaluation report without having Orlando present to testify and in considering the report as evidence of Appellant's competency to stand trial. Trial counsel had requested another evaluation of Appellant's competency which was granted by the trial court. This third evaluation occurred on July 9, 2015, approximately two years after Gazley's evaluation and approximately 21 months after Welsh's evaluation. Orlando concluded that Appellant was competent to stand trial. Approximately one week prior to the second competency hearing, trial counsel filed a motion seeking appropriation of funds to secure Orlando's appearance at the hearing. The trial court did not rule on that motion before hearing. At the hearing, counsel argued appropriation of funds were necessary so that Orlando could personally testify regarding the substance of the report. The court denied the request for funds at the hearing, admitted the report, and noted that it considered the report as well as the previous competency evaluations in making a determination that Appellant was competent to stand trial. The trial court issued a judgment entry on October 23, 2015, memorializing that finding. The matter proceeded to a jury trial and Appellant was found guilty on all charges and sentenced to a four-year prison term.

{¶ 27} Citing Ake v. Oklahoma, 470 U.S. 68, 77, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), Appellant contends that indigent defendants must be afforded the resources necessary to meet the burden of determining competency to stand trial. As noted in R.C. 2945.37(E) :

A written report of the evaluation of the defendant may be admitted into evidence at the hearing by stipulation, but, if either the prosecution or defense objects to its admission, the report may be admitted under sections 2317.36 to 2317.38 of the Revised Code or any other applicable statute or rule.

{¶ 28} R.C. 2317.36 governs admissible reports and states:

A written report or finding of facts prepared by an expert who is not a party to the cause, nor an employee of a party, except for the purpose of making such report or finding, nor financially interested in the result of the controversy, and containing the conclusions resulting wholly or partly from written information furnished by the co-operation of several persons acting for a common purpose, shall, in so far as the same is relevant, be admissible when testified to by the person, or one of the persons, making such report or finding without calling as witnesses the persons furnishing the information, and without producing the books or other writings on which the report for finding is based, if, in the opinion of the court, no substantial injustice will be done the opposite party.

{¶ 29} R.C. 2317.37 addresses cross-examination of a witness by an opposing party relative to a written report:

Any person who has furnished information on which a report or finding mentioned in section 2317.36 of the Revised Code is based may be cross-examined by the adverse party, but the fact that his testimony is not obtainable shall not render the report or finding inadmissible, unless the trial court finds that substantial injustice would be done to the adverse party by its admission.

{¶ 30} R.C. 2317.38 relates to notice to an opposing party regarding an intention to submit a report, which is not at issue in this case. Appellant equates the alleged need for Orlando's personal testimony to obtaining the "raw materials" necessary to meet the defense burden. See Ake , supra. However, as noted in the statutes cited above, the admission of a report not prepared by a party or a party with a pecuniary interest in the matter is permissible by stipulation, or if the trial court determines that no "substantial injustice" would be done to the adverse party. Two previous evaluations had already been conducted in this matter and they contained diverging opinions. This third evaluation, the third conducted within a two-year time period, resulted in a finding of competency. This comported with the trial court's previous competency ruling following a full hearing on the matter, including testimony from two experts and trial counsel. Trial counsel raised the same arguments regarding competency at the October 14, 2015 second competency hearing he raised at the first hearing. The trial court acknowledged counsel's concerns and noted that it had heard the same arguments from trial counsel prior to the previous finding of competency. The trial court also acknowledged the amount of time and resources already utilized on Appellant's competency issue, stating:

This court has made every attempt to be sure that this defendant is, under the law, capable of proceeding. We have had a number of lengthy hearings wherein the experts were called in and they were - - you had the opportunity, as well as the prosecution, to examine them and talk about their findings and their prognosis and their diagnosis and so forth. And then at the last date the case was set for trial, you, as an officer of the court, brought to my attention that there was just something wrong here, something just wasn't quite right, and that we decided that we would have your client examined by a third party, an independent person, who had not had any dealing with your client in the past. And I suggested, as you rightfully placed on the record, if you have some concerns, let's get these to the people, to the folks, and in particular the doctor, who is going to be giving us his or her opinion.
* * *
I have read, reviewed and considered the report. I believe it's consistent with all the other reports and testimony that has been presented to this court regarding Ms. Shine's condition and her ability to stand trial and I, therefore, think it's a burden, unnecessary and of no value to grant you the request to have that physician, that doctor, appear and I am overruling that. I'm also finding that she is capable to stand trial, even after hearing the merits of your argument and that, therefore, we are going to find her competent to stand trial and set a trial date.

(10/14/15 Tr., pp. 9-12.)

{¶ 31} While the trial court, in granting this third evaluation of Appellant's competency, certainly could have allocated the funds to allow Orlando to attend the hearing to testify regarding the report, the court did not err in the decision not to order these funds be made available. Had this been Appellant's only competency evaluation, the trial court's denial of the appropriation of funds may have presented a different issue. Where, as here, Appellant's competency was thoroughly vetted and analyzed by three experts, three evaluations, multiple hearings and two attempts at appellate review, the denial of funds to prove Orlando's testimony does not amount to an abuse of discretion. The trial court carefully set forth the substance and depth of the already years-long evaluation of Appellant's competency and determined that the issue was closed and it was now time to proceed with trial. There was no abuse of discretion in the denial of the appropriation of funds for Orlando to testify or in the trial court's consideration of the substance of the third expert report regarding Appellant's competency. Appellant's first assignment of error is without merit and is overruled.

ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT DENIED APPELLANT DUE PROCESS OF LAW, PURSUANT TO BOTH THE OHIO AND UNITED STATES CONSTITUTIONS BY FAILING TO HOLD A COMPETENCY HEARING WHEN THE ISSUE WAS RAISED ON THE DAY OF TRIAL.

{¶ 32} Appellant contends that the trial court erred when it denied a request for yet another competency hearing made on the day of trial. Appellant contends that the trial court was required to hold a competency hearing if the request is made prior to trial. See State v. Corethers, 90 Ohio App.3d 428, 433, 629 N.E.2d 1052 (8th Dist.1993). Appellant contends that the court was required to order another evaluation of Appellant's competency for this hearing and that without the evaluation sought by counsel, the trial court would be "ill-equipped" to determine whether a defendant was competent to stand trial. (Appellant's Brf., pp. 9-10.)

{¶ 33} In the instant matter, counsel for Appellant was requesting a fourth competency evaluation of Appellant. As noted by the Second District in State v. Alvarado, 4th Dist. No. 14CA3423, 2014-Ohio-5374, 2014 WL 6878449, ¶ 6 :

In a criminal action the defense may raise the issue of a defendant's competence to stand trial, and if the issue is raised prior to trial, the court must hold a hearing on the issue. R.C. 2945.37(B). However, this provision does not require the court to order an evaluation prior to the hearing. State v. Perotti, 4th Dist. Scioto No. 89CA1845, 1991 WL 87303, *7 (May 15, 1991). Rather, R.C. 2945.371(A) states that if the defendant raises the issue of competency, the trial court "may order one or more evaluations of the defendant's present mental condition * * *." Accordingly, a competency evaluation is not required every time the issue of competency is raised by the defendant. State v. Stahl, 2nd Dist. Greene No. 2004-CA-69, 2005-Ohio-2239 [2005 WL 1060618], ¶ 19.

{¶ 34} It is within the discretion of the trial court to determine whether multiple evaluations for competency should be conducted. In re J.B., 12th Dist. No. CA2004-09-226, 2005-Ohio-7029, 2005 WL 3610482, ¶ 35. This record already contained three evaluations of Appellant's competency to stand trial conducted within a two-year period. As noted, the trial court presented a detailed analysis at the second competency hearing of these evaluations before issuing its second determination on competency. There is nothing in this record to demonstrate any marked change in Appellant's mental condition nor were any findings made in the third evaluation which demonstrated a need for further inquiry into competency. We see nothing in the trial court's decision that is unreasonable, arbitrary or unconscionable. Two of the three previous evaluations concluded that Appellant was competent to stand trial, there is no evidence at trial or sentencing that Appellant exhibited unusual or irrational behavior which would have called her competency during trial into question. The trial court did not abuse its discretion in denying another evaluation of Appellant's competency on the day of trial. Appellant's third assignment of error is without merit and is overruled.

Conclusion

{¶ 35} Based on the foregoing, we conclude that Appellant's assignments of error are without merit and the judgment of the trial court is affirmed.

Donofrio, J., concurs.

Robb, P.J., concurs.