author: LARRY A. JONES, SR., J.:

text:
    STATE of Ohio, Plaintiff-Appellee v. Marvin Baxter LINDER, Defendant-Appellant
    No. 105462
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: March 1, 2018
    Russell S. Bensing, 600 IMG Building, 1360 East Ninth Street, Cleveland, Ohio 44114, ATTORNEY FOR APPELLANT
    Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Jillian Eckart, Assistant County Prosecutor, The Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE
    BEFORE: Jones, J., Keough, P.J., and Laster Mays, J.
    JOURNAL ENTRY AND OPINION
   LARRY A. JONES, SR., J.:

{¶ 1} In this appeal, defendant-appellant Marvin Baxter Linder ("Linder") contends that his counsel was ineffective in representing him on his pro se motion to withdraw his plea. He further contends that the trial court abused its discretion by denying his pro se motion to disqualify counsel. For the reasons that follow, we find that Linder's counsel was not ineffective, and thus we uphold Linder's plea, but remand the case for resentencing with new counsel.

I. Procedural and Factual Background

{¶ 2} In July 2016, Linder, along with five codefendants, was charged in a 21-count indictment. The charges related to drug trafficking as part of a criminal gang. Linder retained counsel to represent him.

{¶ 3} Linder, through counsel, engaged in pretrial procedures and practices with the state. During plea negotiations, the state left two offers on the table in regard to sentencing: (1) a recommended prison range of 8 to 12 years, or (2) a recommended prison range of 6 to 15 years.

{¶ 4} The case was set for trial, and on the date trial was scheduled to commence, the trial court entered an order allowing Linder time in the courtroom to meet with his mother and father. After the meeting with his parents, Linder agreed to plead guilty. The agreement was that he would plead guilty to 13 counts of the indictment, and the parties would recommend to the court a sentencing range of 6 to 15 years. The trial court accepted the plea, finding that Linder knowingly, intelligently, and voluntarily entered into it. The court set the matter for sentencing.

{¶ 5} Three days prior to the sentencing date, Linder filed two pro se motions: one to disqualify his counsel and have new counsel appointed, and the other to withdraw his guilty plea. Counsel first learned of the motions on the day of sentencing, which was when the motions were considered by the trial court, prior to the imposition of sentence.

Motion to Disqualify Counsel

{¶ 6} Linder addressed the court, and told it that his counsel had failed to show Linder most of the discovery he obtained from the state. Linder also complained that he provided counsel with a list of witnesses whom Linder believed would have testified on his behalf at trial, but his counsel failed to contact any of them. Linder further told the court that "they made me take a deal against my will."

{¶ 7} The trial court judge told Linder that some of the discovery that the state provides to defense counsel is for counsel only; it is not meant for the client to see. The court further told Linder that

It seems to me [counsel has] done a lot on your behalf. You just told me on the record everything that you know he has. So, he has police reports, he has statements, he has photos. He has all of this evidence, and you are just complaining because you haven't seen it all, but he has it. It's not a situation where you are coming in here and telling he hasn't retrieved anything for you, that there's all this outstanding discovery, that there's statements that exist that you don't have.
I don't see what he hasn't done for you. You just put on the record everything that he's done for you, not to mention all the pretrials that have been conducted as well.

{¶ 8} Linder responded that he told counsel he had not been interested in taking a plea, but had wanted to go to trial instead.

{¶ 9} Linder's counsel addressed the court. He stated that "[i]t's my duty, and I took an oath to defend people the best way possible and sometimes that means that I have to do things that even they don't understand." Counsel then told the court that even if it did not sentence Linder to maximum, consecutive time, he was still exposed to a significant sentence of at least 20 years because of the serious nature of the charges and the numerous gang and gun specifications.

{¶ 10} In response to Linder's complaint about not seeing most of the discovery provided by the state, counsel told the court that he was "walking a fine line of still maintaining privilege," but that Linder was concerned that, due to his inability to view some of the discovery, he had no way of knowing whether counsel was just "making up" statements. Counsel told the court that he was not going to "compromise [his] license because someone challenges whether [he is] telling the truth * * *."

{¶ 11} Counsel further explained his advocacy for, and relationship with, Linder as follows:

No, he did not inspect the witness statement, but we have been over it time and time again what evidence would be presented against him. His attitude [was], I'm going to go to trial anyway. [It had] nothing to do with whether or not there were defenses, but just that he wanted to go to trial, and I told him repeatedly I wasn't going to let him walk himself over a cliff just because.
The court graciously allowed his parents time alone with him, cleared the courtroom. I stepped aside and even his father had a frank discussion with him that said, use your head. I raised you better than this. You are guilty of some stuff. This is fair and adequate.
He wasn't pressured. As a matter of fact, he stated in open court and on the record that no promises or threats were made to get him to take the plea. * * * [G]etting him to a point where he did take this plea was the best that could be done for him under the circumstances after going over every possible thing that would come up in court, including statements he made, evidence that was in his phone, things that his family continued to post on Facebook, talk to him about over the phone while he was in jail and to blindly say, so what, I want to go to trial was not in his best interest.
So, I stand proud on the fact we were able to reach a plea offer. As a matter of fact, we started that day of trial with an eight-year minimum and the State and I even on the day of trial graciously continued to work to put something together that would benefit Mr. Linder. And I believe that at the end of the day and after almost a whole day's work in court, we were able to hammer out something that ultimately I believe will result in a fair resolution of this.
I didn't neglect any of my duties. If anything else, I'm trying to save Mr. Linder from himself.

{¶ 12} After counsel stated the above, Linder then complained that counsel had only been to see him three times in jail, which were brief, two to three minute visits. Linder stated that because the visits were so brief, he and counsel never discussed his defense. The court reviewed the docket and its notes, detailing other times, in addition to the three visits, that Linder interacted with counsel. In doing so, the court made reference to a psychological evaluation that Linder had, and stated "[t]hen your reports came back and those were the ones to determine how to handle Mr. Linder." At that point, defense counsel interjected, "Your Honor, if the court remembers, the report came back that he was malingering." The court recalled that the malingering issue was addressed.

{¶ 13} Counsel informed the court that, from the beginning of the case, Linder had been apprised of the state's evidence: "This evidence has been in front of him. This evidence has been irrefutable for two years. Mr. Linder knows that, [so] my comment [to him] was, don't play games with going to trial, you are only going to hurt yourself." Counsel further commented, "I will stand on the work that's been on the recommendation based on the report that came back after all the time he spent at Northcoast and the fact that Mr. Linder knows what he's been doing, including filing these motions today."

{¶ 14} The assistant prosecuting attorney told the court that counsel's representation that some of the discovery the state provided to the defense was marked "counsel only" was accurate. The assistant prosecuting attorney also told the court that "all of the evidence the State has provided throughout this entire case has remained the same."

{¶ 15} Thus, the record demonstrates a robust colloquy, with Linder maintaining that counsel did not sufficiently represent him, and counsel maintaining that he did. Counsel's final commentaries to the court included him saying the following: (1) "I can't even formulate the words to sit here and listen to this man lie and say he knows nothing and I didn't discuss evidence * * * his attitude was so what, I want to go to trial anyway"; (2) "It's the game that not only he is playing today but was playing leading up to taking a plea [but] I continue to say it is in his best interest to not let him walk himself over a cliff"; and (3) "Don't lie."

{¶ 16} Noting the work that counsel had done on behalf of Linder, and that Linder had not previously voiced any dissatisfaction with counsel, but, in fact stated at the plea hearing that he was satisfied with him, the trial court denied the motion to disqualify counsel.

Motion to Withdraw Plea

{¶ 17} The trial court first heard from Linder's counsel on Linder's request to withdraw his plea. Counsel told the court that all of the constitutional rights that Linder waived in pleading guilty were explained to him in the plea colloquy. He told the court that he reviewed the waiver of the rights with Linder "over and over and over" again, but that "[o]ne of the sticking points * * * [was that] Mr. Linder [did not] understand that one witness' testimony is enough, if believed by the jury, to be sufficient evidence to possibly result in a conviction." Counsel's position, therefore, was as follows:

So, with regard to withdrawing his guilty plea, in addition to everything that was stated in open court, in addition to everything that I counseled him about in getting him ready to take the plea, I will say since family was included and therefore confidentiality was broken, every single thing about what he was giving up was discussed with his mother and his father as well.
This plea was entered into knowingly, intelligently, and voluntarily because that was in Mr. Linder's best interest.

{¶ 18} Linder responded that, during the meeting, counsel arranged, and the court allowed, for him to talk to his parents, he was "basically forced * * * to take the deal, not by [defense counsel] but by my mother and father. I told them I did not want to take the deal. I wanted to go to trial."

{¶ 19} The trial court, reviewing the official transcript, informed Linder that he (1) never indicated at the plea hearing that he was having any issues or difficulties with the plea, (2) never hesitated, (3) indicated that he understood all of the constitutional rights he was waiving, (4) indicated that he understood the possible sentencing penalties, including that the trial court was not bound by the recommended sentencing range.

{¶ 20} Linder continued to maintain that he was "forced and pressured by my parents to take my plea." Counsel responded:

Your Honor, my only comment with regard to all of that is * * * the colloquy Mr. Linder has engaged us in * * * can only be one of two things. It can either be a continuation of the kind of things he tried back in the summer of last year to manipulate this court and this process, or Northcoast did a remarkable job of restoration. * * * I want the record to reflect that he's mischaracterized not only his relationship with me but the conversations he had with his mom and dad. His mom and dad didn't pressure him. His mom and dad begged him to do the right thing. I don't know where the attitude, the resistance and the untrue allegations of this morning came from, but I would ask the court to continue with the sage advice he got from mom and dad and keep the plea.

{¶ 21} The trial court denied Linder's motion to withdraw his plea, and asked counsel what he had to say on Linder's behalf relative to sentencing. Counsel told the court that because he never received, nor was aware of until that day, Linder's pro se motions to disqualify him and withdraw his plea, he came "prepared to * * * talk about how Mr. Linder took full responsibility for his actions and is remorseful." Counsel further told the court that "it's hard to stand here in front of you and make that claim after the hearing that we just had." Nonetheless, counsel told the court that he believed that Linder could "change his life and one day be a contributing productive citizen," and he hoped that the court would not "hold * * * what we've been through against him and sentence him just on what would have been presented had we gone to trial."

{¶ 22} The state outlined the case that would have been presented against Linder, and in doing so, presented two law enforcement officials who informed the court about Linder's role in the criminal gang. Thereafter, the trial court imposed a nine-year prison term on Linder. Linder now appeals, presenting the following two assignments of error for our review:

I. The Defendant was denied the assistance of counsel, by virtue of his attorney's complete abandonment of his role as an advocate for his client, in violation of Defendant's rights under the 6th Amendment to the Constitution of the United States and Article I, Section 10 of the Ohio Constitution.
II. The trial court erred and abused its discretion in failing to disqualify counsel and to permit counsel to continue to represent Defendant.

II. Law and Analysis

{¶ 23} The two assignments of error are interrelated and will be considered together. Linder's contention in this appeal is that his plea was not knowingly, intelligently, and voluntarily made because of his counsel's deficient performance, and that his counsel's continued representation of him left him without counsel, because counsel essentially defended his own work on the case rather than advocate for Linder.

{¶ 24} According to Linder, we should review his ineffective assistance of counsel claim under a structural-error analysis. A structural error is a constitutional defect that affects the framework within which the trial proceeds, rather than simply being an error in the trial process itself. State v. Colon , 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917, ¶ 20. Structural error gives rise to a conclusive presumption of prejudice as a matter of law and thus requires automatic reversal. State v. Fisher , 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222, ¶ 9-10. A structural error permeates the entire conduct of a trial so that the trial cannot reliably serve its function as a means for determining guilt or innocence. Arizona v. Fulminante , 499 U.S. 279, 309-310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). The Ohio Supreme Court has admonished courts to apply structural error with caution. State v. Wamsley , 117 Ohio St.3d 388, 2008-Ohio-1195, 884 N.E.2d 45, ¶ 24 ; see also Colon at ¶ 21.

{¶ 25} To establish a claim that counsel was ineffective under the Sixth Amendment, a defendant normally must establish both that counsel performed deficiently and that he or she was prejudiced by the deficient performance. State v. Spaulding , 151 Ohio St.3d 378, 2016-Ohio-8126, 89 N.E.3d 554, ¶ 56, citing Strickland v. Washington , 466 U.S. 668, 686, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The United States Supreme Court has "uniformly found constitutional error without any showing of prejudice when counsel was * * * totally absent, or prevented from assisting the accused during a critical stage of the proceeding."

United States v. Cronic , 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), fn. 25 ; Strickland at 692, 104 S.Ct. 2052 ("Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice.").

{¶ 26} Upon review, we find that the structural error analysis does not apply to this case. Counsel was neither "totally absent" nor "prevented from assisting" Linder. Rather, the record demonstrates that it was counsel's belief that he had, and was, advocating for the best possible outcome for Linder based on his confidential communications with Linder and the evidence the state had against him. Thus, we will review to determine whether Linder suffered prejudice because of counsel's performance.

{¶ 27} That is, a reviewing court will not deem counsel's performance ineffective unless the defendant can demonstrate that counsel's performance fell below an objective standard of reasonable representation and that prejudice arose from the lawyer's deficient performance. Strickland at 687-688, 104 S.Ct. 2052 ; State v. Bradley , 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989). The Ohio Supreme Court has held that "judicial scrutiny of counsel's performance is to be highly deferential and that reviewing courts must refrain from second-guessing the strategic decisions of trial counsel." State v. Carter , 72 Ohio St.3d 545, 558, 651 N.E.2d 965 (1995).

{¶ 28} Furthermore, in reviewing an ineffective assistance of counsel claim when a defendant was represented by retained counsel, as was the case here, it has been held that the test is "whether the accused, under all the circumstances including the fact that he had retained counsel, had a fair trial and substantial justice was done." State v. Hester , 45 Ohio St.2d 71, 80, 341 N.E.2d 304 (1976).

{¶ 29} In light of above, we review the plea to determine counsel's performance in representing Linder at that proceeding. The record demonstrates that both prior to the plea and during the plea proceeding counsel advocated on Linder's behalf. The record also demonstrates that the trial court fully complied with all the Crim.R. 11 requirements in taking his plea. Appellant indicated that he understood the rights he was waiving, that he was freely and voluntarily waiving them, and the possible penalties that could result from the plea. He further indicated that he was satisfied with his counsel.

{¶ 30} Moreover, in addition to not raising any concerns about his plea at the actual plea hearing, Linder told the court at the hearing on his pro se motions that it was his parents, not counsel, who forced him to take the plea: "I was basically forced to * * * take the deal, not by [counsel] but by my mother and father. I told them I did not want to take the deal. I wanted to go to trial." But, again, Linder never raised any concern at the plea hearing.

{¶ 31} Therefore, in reviewing for an abuse of discretion, we find no such abuse in the trial court's decision to deny Linder's presentence motion to withdraw his plea. And for the reasons already discussed, we find that counsel was not ineffective in his representation of Linder.

{¶ 32} In his second assignment of error, Linder contends that the trial court abused its discretion by not disqualifying counsel. In line with what we have stated above, we hold that counsel's representation of Linder at the hearing on the motion to withdraw the plea was proper. However, as counsel himself admitted in regard to sentencing, it was "hard to stand here in front of you and make [a] claim [of Linder's remorse] after the hearing that we just had." And even though counsel still advocated on behalf of Linder, we nonetheless find that, under the circumstances of this case, counsel should have been disqualified from representing Linder at sentencing.

{¶ 33} Therefore, the first assignment of error is overruled and the second assignment of error is sustained only as it relates to sentencing. The plea is upheld, but the case is remanded for resentencing with new counsel.

{¶ 34} Affirmed in part; remanded in part for further proceedings consistent with this opinion.

KATHLEEN ANN KEOUGH, P.J., and ANITA LASTER MAYS, J., CONCUR

      Linder had two retained attorneys during the trial court proceedings. He discharged his first counsel and his second retained counsel is the counsel at issue in this appeal.

      See State v. Xie , 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992).


source: Caselaw Access Project

author: SADLER, J. LUPER SCHUSTER, J., dissenting.

license: Public Domain

text:
    IN RE SPECIAL GRAND JURY INVESTIGATION
    No. 17AP-446
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on March 1, 2018
    On brief: Webster & Associates Co., LPA, Geoffrey E. Webster, Columbus, and Bryan M. Pritikin, Columbus; Kegler Brown Hill & Ritter, and Jonathan E. Coughlan, Columbus, for appellants. Argued: Geoffrey E. Webster ; Jonathan E. Coughlan.
    On brief: Michael DeWine, Attorney General, and Anthony J. Molnar, Columbus, for appellee. Argued: Anthony J. Molnar.
    DECISION
   SADLER, J.

{¶ 1} Appellants, a rehabilitation and nursing center ("rehabilitation center") and its parent organization, appeal an entry of the Franklin County Court of Common Pleas ordering production of documents alleged by appellants to be protected under the work-product doctrine. Because appellants have not argued or affirmatively established that an immediate appeal is necessary in order to afford a meaningful and effective remedy under R.C. 2505.02(B)(4)(b), we dismiss the appeal for lack of a final, appealable order pursuant to Smith v. Chen , 142 Ohio St.3d 411, 2015-Ohio-1480, 31 N.E.3d 633.

I. CASE BACKGROUND

{¶ 2} In 2016, during the course of grand jury proceedings, appellee issued a subpoena to appellants requesting internal investigation documentation related to a self-reported incidence ("SRI") report submitted by appellants to the Ohio Department of Health in 2014. Appellants refused to produce certain internal investigation documentation related to the SRI on the grounds that the requested documents were protected under the "work-product privilege" and provided a corresponding privilege log based on a claimed work-product privilege. Appellee filed a motion for a show cause order as to why appellants should not be held in contempt for failing to comply with the subpoenas. Appellants opposed the show cause motion arguing the documents underlying the SRI investigation at issue are not legally required as a part of internal investigations, are not required to be turned over to the state under any law, are instead work product prepared in anticipation of litigation, and are not required to be disclosed for good cause.

{¶ 3} On May 12, 2017, the trial court found the documents sought by appellee are not work product. Therefore, the trial court ordered appellants to provide the requested documents to appellee before a certain date as appellee had failed to show cause why it should not be held in contempt. Enforcement of the order to produce the documents is stayed pending appeal.

{¶ 4} Appellants filed a timely appeal to this court, presenting two assignments of error:

[1.] THE TRIAL COURT ERRED IN FINDING APPELLANTS' COUNSEL'S INTERNAL INVESTIGATION WAS NOT PROTECTED, PRIVILEGED WORK PRODUCT.
[2.] THE TRIAL COURT ERRED BY FINDING THE STATE WAS ENTITLED TO SECURE APPELLANTS COUNSEL'S DOCUMENTS THROUGH SUBPOENA.

{¶ 5} In its appeal, appellants request this court find that documentation supporting appellants' investigation is protected by the "work-product privilege" and that appellee has not shown good cause to compel production of those documents before the grand jury. (Appellants' Brief at 37.) Appellants did not address in their briefs or at oral argument why the trial court's order is final and appealable or specifically why an immediate appeal is necessary in order to afford them a meaningful and effective remedy. In its appellate brief, appellee "concedes" that the order is appealable pursuant to Doe at paragraph two of the syllabus. (Appellee's Brief at 4.)

II. DISCUSSION

{¶ 6} An appellate court's jurisdiction is limited to the review of final, appealable orders, judgments, or decrees, and, therefore, we are obligated to raise sua sponte questions related to our jurisdiction. State ex rel. Ohio Academy of Nursing Homes, Inc. v. Ohio Dept. of Medicaid , 10th Dist. No. 16AP-102, 2016-Ohio-1516, 2016 WL 1436590, ¶ 4-5, citing R.C. 2505.03(A) and State ex rel. Bd. of State Teachers Retirement Sys. of Ohio v. Davis , 113 Ohio St.3d 410, 2007-Ohio-2205, 865 N.E.2d 1289, ¶ 44 ; Brown v. ManorCare Health Servs. , 9th Dist. No. 27412, 2015-Ohio-857, 2015 WL 1036012, ¶ 7. If a judgment is not a final, appealable order, then an appellate court has no jurisdiction to review the matter, and it must be dismissed. State v. Boschulte , 10th Dist. No. 02AP-1053, 2003-Ohio-1276, 2003 WL 1227627, ¶ 4.

{¶ 7} "Generally, trial court orders addressing discovery issues are merely interlocutory and not immediately appealable." Bowers v. Craven , 9th Dist. No. 25717, 2012-Ohio-332, 2012 WL 315052, ¶ 14. However, an order compelling discovery of information alleged to be privileged or protected may be final and appealable if certain requirements of R.C. 2505.02 are met. Ohio Academy of Nursing Homes at ¶ 4-6 ; Summit Park Apts., LLC v. Great Lakes Reinsurance (UK), PLC , 2016-Ohio-1514, 49 N.E.3d 363, ¶ 9-11.

{¶ 8} Pursuant to R.C. 2505.02(B), in pertinent part, an order is final and appealable where that order:

(4) [G]rants or denies a provisional remedy and to which both of the following apply:
(a) The order in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy.
(b) The appealing party would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action.

{¶ 9} The Supreme Court in Doe recently addressed the appealability of orders compelling production of documents in the context of grand jury proceedings. Regarding the first requirement under R.C. 2505.02(B)(4), the court in Doe found that an order for a party to testify or produce documents in a grand jury proceeding is an order granting or denying a "provisional remedy" within the meaning of R.C. 2505.02. Doe at paragraph one of the syllabus. The court further held that under the second requirement, "[a]ny order compelling the production of privileged or protected materials certainly satisfies R.C. 2505.02(B)(4)(a) because it would be impossible to later obtain a judgment denying the motion to compel disclosure if the party has already disclosed the materials." Id. at ¶ 21, citing Burnham v. Cleveland Clinic , 151 Ohio St.3d 356, 2016-Ohio-8000, 89 N.E.3d 536, ¶ 21.

{¶ 10} Regarding the last requirement set forth in R.C. 2505.02(B)(4)(b), the Doe court found that "[w]hen a party is compelled to produce material protected by the attorney-client privilege, harm extends beyond the actual case being litigated and causes the loss of a right that cannot be rectified by a later appeal." Id. at ¶ 22. Thus, "[a]n order enforcing a grand jury subpoena and ordering the production of allegedly privileged information is a final order pursuant to R.C. 2505.02(B)(4)." Id. at paragraph two of the syllabus. The court specifically limited this holding to information alleged to be protected by attorney-client privilege; the court declined to address whether R.C. 2505.02(B)(4)(b) is satisfied with regard to information alleged to be protected by the attorney work-product doctrine. Id. at ¶ 22, fn. 3.

{¶ 11} Additional Supreme Court of Ohio precedent recently cited by this court states that under the last requirement set forth in R.C. 2505.02(B)(4)(b), a party attempting to appeal an order compelling discovery of privileged materials must affirmatively establish that an immediate appeal is necessary to afford the appellant a meaningful and effective remedy. Nami v. Nami , 10th Dist. No. 17AP-265, 2017-Ohio-8330, 2017 WL 4861533, ¶ 19, citing Chen at ¶ 8 (finding an order to produce documents alleged to be protected under the work-product doctrine was not final and appealable where the appellants never argued or established they would not be afforded an effective or meaningful remedy through appeal after final judgment under R.C. 2505.02(B)(4)(b) and failed to address that requirement adequately again in a show cause order issued by the Supreme Court). See , e.g. , Summit Park Apts. at ¶ 11 (finding the trial court order at issue was final and appealable by distinguishing its own facts from Chen because the appellants effectively argued, both in its primary brief and reply, that it would be denied a meaningful remedy if not permitted to appeal because the privilege is lost once the documents are exposed to opposing counsel); Third Fed. S. & L. Assn. of Cleveland v. Callahan , 1st Dist. No. C-140443 (Nov. 23, 2016) (finding it was without jurisdiction under Chen where the appellant failed to argue, both before the trial court and in the appeal, that it would not be afforded a meaningful and effective remedy absent an immediate appeal); Walker v. Taco Bell , 1st Dist. No. C-150182, 2016-Ohio-124, 2016 WL 196980, ¶ 8 (dismissing the appeal for lack of jurisdiction where the appellant failed to establish why an immediate appeal of the trial court's order is necessary under Chen ); Leipply v. Diamond Cut Lawn & Landscaping Serv. LLC , 7th Dist. No. 16 CO 0004, 2016-Ohio-4748, 2016 WL 3573877, ¶ 8 (dismissing appeal for lack of a final, appealable order because the appellant's "traditional 'the proverbial bell cannot be unrung' argument," without more, was insufficient under Chen to demonstrate why the appellant cannot wait until the underlying lawsuit has been resolved to appeal the trial court's discovery order); Howell v. Park E. Care & Rehab. , 8th Dist. No. 102111, 2015-Ohio-2403, 2015 WL 3823773, ¶ 11 (discussing Chen and dismissing appeal where the appellant did not make any attempt to establish the necessity of an immediate appeal to satisfy the requirements of R.C. 2505.02(B)(4)(b) ).

{¶ 12} Here, although appellants use the phrase "work-product privilege," the only ground appellants asserted to avoid production of the requested documents is the work-product doctrine; appellants make no allegation that the attorney-client privilege applies, and in oral argument repeatedly stated they were not asserting attorney-client privilege. As a result, we disagree with appellee that Doe is dispositive on the issue of whether the trial court order is final and appealable to invoke our jurisdiction, as that case specifically refrained from applying its holding to cases alleging protection under the work-product doctrine.

{¶ 13} Furthermore, unlike in Summit Park Apts. , appellants in this case have not addressed, either in their appellate briefs or at oral argument, whether an immediate appeal is necessary in order to afford a meaningful and effective remedy in this case. As a result, we find appellants have not affirmatively established that an immediate appeal is necessary pursuant to R.C. 2505.02(B)(4)(b) under Chen . We, therefore, "presume an appeal in the ordinary course would be meaningful and effective" and find the trial court order at issue is not final and appealable on the facts of this case. Id. at ¶ 8. Without a final, appealable order, we lack jurisdiction over this matter. Boschulte at ¶ 4.

{¶ 14} We note that the dissent primarily takes issue with dismissing the case without first ordering supplemental briefing. The dissent has not set forth authority showing supplemental briefing is required in this or any instance. Undoubtedly, there are instances where a court would benefit from additional briefing on a particular issue. Whether or not supplement briefing is warranted is a question within the discretion of the appellate court. App.R. 16(C).

{¶ 15} Here, appellants have not made any attempt to establish the necessity of an immediate appeal under R.C. 2505.02(B)(4)(b) despite recent Supreme Court cases discussing this issue. Chen currently remains precedent and has been followed by appellate courts to support dismissal where the appellant failed to argue that it would afford a meaningful and effective remedy pursuant to R.C. 2505.02(B)(4)(b). See , e.g. , Callahan ; Howell. Accordingly, we find dismissal is warranted without supplemental briefing in this case.

{¶ 16} For the above stated reasons, and on the authority of Chen and its prodigy, this appeal is dismissed.

III. CONCLUSION

{¶ 17} Having found we lack jurisdiction over this matter due to the lack of a final, appealable order, we dismiss this appeal.

Appeal dismissed.

TYACK, J., concurs.

LUPER SCHUSTER, J., dissents.

LUPER SCHUSTER, J., dissenting.

{¶ 18} Because I would not sua sponte dismiss for lack of a final appealable order without, at a minimum, ordering supplemental briefing, I respectfully dissent.

{¶ 19} The majority relies on the Supreme Court of Ohio's decision in Smith v. Chen, 142 Ohio St.3d 411, 2015-Ohio-1480, 31 N.E.3d 633, for the proposition that an order compelling the production of documents alleged to be privileged work product is not a final appealable order where the appealing party does not affirmatively establish that an immediate appeal is necessary pursuant to R.C. 2505.02(B)(4)(b). However, before dismissing for lack of a final appealable order in Chen , the Supreme Court first ordered the parties to show cause why the appeal should not be dismissed for lack of jurisdiction pursuant to R.C. 2505.02. Chen at ¶ 6. Thus, it was only after the parties failed to articulate why they would not be afforded a meaningful or effective remedy by an appeal following final judgment, when specifically prompted , that the Supreme Court found no final appealable order.

{¶ 20} The specific factual and procedural posture is vital to Chen and to the cases that purport to follow it. As this court noted in Summit Park Apts., LLC v. Great Lakes Reinsurance (UK), PLC, 2016-Ohio-1514, 49 N.E.3d 363, also cited by the majority, to the extent the Supreme Court intended to impose an affirmative burden to establish that an immediate appeal is necessary in an order compelling the production of allegedly privileged work product, such an affirmative burden is highly fact-specific. Id. at ¶ 11 (noting that, in Chen , "factually, the party seeking to defend privilege and work product on appeal in [ Chen ] failed to show cause when ordered to do so on whether there was a final appealable order"). It follows, then, that the requirement of the affirmative burden should not be used as a basis for dismissal without first giving the party the opportunity to meet that burden. Additionally, we noted in Summit Park Apts. that the appellant in that case argued in its briefing that it would be denied a meaningful remedy if it could not immediately appeal and, thus, declined to find no final appealable order pursuant to Chen . Summit Park Apts. at ¶ 11.

{¶ 21} Critically here, unlike in Summit Park Apts. , this court sua sponte raised the issue of a potential lack of a final appealable order. Therefore, at a minimum, I would not decide this issue without giving the parties the opportunity to weigh in through supplemental briefing. See Id. at ¶ 11 (noting that, through briefing, the appealing party was able to affirmatively demonstrate than an immediate appeal was necessary). See also Nami v. Nami, 10th Dist. No. 17AP-265, 2017-Ohio-8330, 2017 WL 4861533, ¶ 12 (noting it was appellee's argument that the order was not final and appealable, meaning the parties had the opportunity to address the issue through briefing). To the extent this court is going to interpret Chen to impose an affirmative burden in work-product privilege cases, I would not impose such a burden without giving the parties an opportunity to be on notice of the issue. See, e.g., State v. Yarbrough , 104 Ohio St.3d 1, 2004-Ohio-6087, 817 N.E.2d 845, ¶ 4 (the Supreme Court requested supplemental briefing from the parties on the issue of jurisdiction, an issue not previously raised in the proceedings).

{¶ 22} Moreover, the majority specifically declines to apply Supreme Court cases pertaining to attorney-client privilege on the grounds that this case involves solely a question of work-product privilege and not of attorney-client privilege. I would not find the issue to be so neatly contained. Though they are indeed two distinct concepts, the work-product privilege emanates from, and is interrelated with, attorney-client privilege. See Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp. , 127 Ohio St.3d 161, 2010-Ohio-4469, 937 N.E.2d 533, ¶ 55 (explaining "the work-product doctrine provides a qualified privilege protecting the attorney's mental processes in preparation of litigation"); Burnham v. Cleveland Clinic , 151 Ohio St.3d 356, 2016-Ohio-8000, 89 N.E.3d 536, at ¶ 31-79 (Kennedy, J., plurality). Thus, many of the same concepts applying to the disclosure of attorney-client privilege, most notably the notion that "the proverbial bell cannot be unrung," apply equally to an analysis of the final nature of an order compelling the production of work-product privilege as it would to an order compelling the production of materials deemed to be attorney-client privilege. Summit Park Apts. at ¶ 11 (internal quotations omitted). This court has recognized, post- Chen , the interrelated nature of claims of attorney-client privilege and work-product privilege. Summit Park Apts. at ¶ 11 (analyzing in a common analysis, without distinction, whether an order compelling the disclosure of potentially privileged matter was a final appealable order).

{¶ 23} For these reasons, I respectfully dissent.

      The documents in this case are filed under seal, and we accordingly refrain from identifying appellants by name. In re Grand Jury Proceeding of Doe , 150 Ohio St.3d 398, 2016-Ohio-8001, 82 N.E.3d 1115, fn. 2.

      The Doe court notes that in Burnham at ¶ 16, it had distinguished the protection provided by the attorney work-product doctrine from the protection provided by the attorney-client privilege in the context of final, appealable orders. Burnham is a split decision. While six justices agreed that an order to produce materials alleged to be protected by the attorney-client privilege is final and appealable under R.C. 2505.02(B), the justices were split 3-3 on the issue of whether attorney-client privilege should be distinguished from work-product protection for purposes of determining whether an order is final and appealable. As there was no majority on that issue, Chen stands as valid precedent.

      We note that the justices in Burnham were also split 3-3 on the issue of whether Chen should be limited to cases alleging work-product protection or overruled in its entirety.

      The dissent takes further issue with our distinguishing between attorney-client privilege and work product, a distinction raised by the Supreme Court in Burnham and noted in Doe at ¶ 22, fn. 3 ("In Burnham , we distinguished the protection provided by the attorney-work-product doctrine from the protection provided by the attorney-client privilege."). Since appellants have failed to affirmatively establish that an immediate appeal is necessary in this case under Chen , we need not address this issue at this time and make no comment on the propriety of this distinction.


text:
    Simon C. MONTGOMERY, et al., Plaintiffs-Appellants v. Donald VARGO, Defendant-Appellee
    No. 105525
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: March 1, 2018
    Daniel S. White, 34 Parmelee Drive, Hudson, Ohio 44236, ATTORNEY FOR APPELLANTS
    Jason Wolfe, 16646 Timberline Drive, Strongsville, Ohio 44136, ATTORNEY FOR APPELLEE
    BEFORE: Jones, J., Keough, P.J., and Celebrezze, J.
    JOURNAL ENTRY AND OPINION
   LARRY A. JONES, SR., J.:

{¶ 1} In this appeal, we consider the second case initiated by plaintiffs-appellants, Simon and Bettina Montgomery, relative to their purchase of a home from defendant-appellee, Donald Vargo. Vargo filed a motion for summary judgment on the ground of res judicata, and the trial court granted the motion. In their sole assignment of error, the Montgomerys contend that the trial court committed reversible error in granting Vargo's motion for summary judgment. For the reasons that follow, we affirm.

{¶ 2} The record demonstrates that the Montgomerys purchased the home, located on Brookdale Avenue in Brook Park, Ohio, "as is," in December 2011. Montgomery v. Vargo , 8th Dist. Cuyahoga No. 102830, 2016-Ohio-809, 60 N.E.3d 709, ¶ 2, 5 (" Vargo I "). The first litigation relating to the sale of the property occurred in 2013 in the Berea Municipal Court. Id. at ¶ 1, 2. In that action, the Montgomerys contended that Vargo failed to disclose on the residential property disclosure form the existence of a material defect relating to a renovation Vargo had done to the house that resulted in the removal of a chimney and fireplace. Id. at ¶ 4. Specifically, the Montgomerys claimed that they suffered damages because of a leak in a flat roof that was installed during renovations to the house. Id. at ¶ 2.

{¶ 3} The case was tried to a magistrate, who found that even though the house was purchased "as is," Vargo should have disclosed the removal of the chimney and fireplace; the court awarded the Montgomerys $1,500 in damages. Id. at ¶ 5. Vargo appealed, contending that the removal of the chimney and fireplace was unrelated to the defect with the roof. Id. This court agreed. Id. at ¶ 9.

{¶ 4} In reversing the trial court's judgment, this court found that there had been two renovations done to the house: the first was done before Vargo owned it, and involved adding the flat roof, and the second was done during Vargo's ownership, and involved the removal of the chimney and fireplace. Id. at ¶ 2, 3. This court found that "[t]here was no evidence that the separation of the chimney caused any damage to the building, that the separation was caused by a latent defect in the structure of the building, or that the roof was repaired or in need of repair after the chimney was removed" and that "there was no evidence that the rotted roof was even remotely related to the removal of the fireplace * * * or the chimney attached to the side of the house." (Emphasis sic.) Id. at ¶ 3, 9.

{¶ 5} After this court's decision in Vargo I was issued in March 2016, the Montgomerys filed the instant case against Vargo in October 2016. They asserted claims for relief based on fraudulent inducement, fraud and mutual mistake of fact. The gravamen of their complaint was that Vargo had failed to disclose that the basement was prone to flooding. In paragraph 16 of their complaint, the Montgomerys alleged that, "[s]hortly after moving into the property, [they] began experiencing severe problems related to water infiltration in their basement." According to the Montgomerys, the issues with water in their basement caused problems with the foundation, basement, crawl space, floors and interior and exterior walls.

{¶ 6} Attached to the complaint was the residential property disclosure form that was completed by Vargo prior to the sale of the home. Section D of the form, "water intrusion," asked "[d]o you know of any previous or current water leakage, water accumulation, excess moisture or other defects to the property, including but not limited to any area below grade, basement or crawl space?" Vargo answered, "[y]es," and explained "when home was purchased there was moisture in the basement. Gutters were fixed and drive drain replaced."

{¶ 7} Section D further asked, "[d]o you know of any water or moisture related damage to floors, walls or ceilings as a result of flooding; moisture seepage; moisture condensation; ice damming; sewer overflow/backup; or leaking pipes, plumbing fixtures, or appliances?" Again, Vargo answered "[y]es," and gave the following explanation: "minor moisture in garage during heavy rain."

{¶ 8} Section E inquired about knowledge of problems with structural components, that is, the foundation, basement/crawl space, floors, or interior and exterior walls. Vargo indicated that he did not have knowledge of any problems in those areas. Section J inquired about knowledge of any "flooding, drainage, settling or grading or erosion problems affecting the property." Vargo also answered that he did not have knowledge of any problems in those areas.

{¶ 9} Vargo filed a motion for summary judgment, contending that the Montgomerys' claims in this action were barred under the doctrine of res judicata. The Montgomerys opposed the motion, contending that this action was "completely different" from Vargo I , which had "nothing whatsoever to do with flooding in the basement" of the house. They further contended, and Simon Montgomery averred in an affidavit, that they were "not aware of [Vargo's] knowledge about the problems with flooding in the basement at this property until January 28, 2015."

{¶ 10} The trial court granted Vargo's motion for summary judgment. The court found that the Montgomerys "plainly could have raised the issue of flooding in the earlier case, as the crux of that dispute was the physical condition of the home. [Simon] himself was aware of the flooding 'shortly after moving into the property.' " The court further found that "Vargo disclosed to the Montgomery[s] his knowledge of moisture in the basement on the Residential Property Disclosure Form dated Oct. 24, 2011, a document central to the litigation of [ Vargo I .]" The Montgomerys now challenge the trial court's decision.

{¶ 11} Appellate review of summary judgment is de novo, governed by the standard set forth in Civ.R. 56. Comer v. Risko , 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. Accordingly, we afford no deference to the trial court's decision and independently review the record to determine whether summary judgment is appropriate. Hollins v. Shaffer , 182 Ohio App.3d 282, 2009-Ohio-2136, 912 N.E.2d 637, ¶ 12 (8th Dist.).

{¶ 12} Under Civ.R. 56(C), summary judgment is proper when the moving party establishes that

(1) no genuine issue of any material fact remains, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and construing the evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made.

State ex rel. Duncan v. Mentor City Council , 105 Ohio St.3d 372, 2005-Ohio-2163, 826 N.E.2d 832, ¶ 9, citing Temple v. Wean United, Inc. , 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).

{¶ 13} The doctrine of res judicata "promotes principles of finality and judicial economy by preventing endless relitigation of an issue upon which there was already a full or fair opportunity to be heard." (Citations omitted.) Daniel v. Williams , 10th Dist. Franklin No. 13AP-155, 2014-Ohio-273, 2014 WL 309312, ¶ 18. For the doctrine to apply, it must be demonstrated that: (1) there was a prior valid judgment on the merits; (2) the present action involves the same parties as the prior action (or the parties in the present action are in privity with the parties in the prior action); (3) the present action raises claims that were or could have been litigated in the prior action; and (4) both actions arise out of the same transaction or occurrence. (Citations omitted.) Id.

{¶ 14} Upon review, we agree with the trial court that the Montgomerys' claims are barred under the doctrine of res judicata. In both actions- Vargo I and here-the Montgomerys complained about the condition of the home, and the actions involve the same parties. The actions both arose out of Vargo's representations on the residential property disclosure form. And, by the Montgomerys' own admission in their complaint, "[s]hortly after moving into the property, [they] began to experience severe problems related to water infiltration in their basement." Thus, they were aware of the alleged problem at the time they filed Vargo I , for which a valid judgment on the merits was rendered.

{¶ 15} We note, however, an inaccurate statement in the trial court's judgment entry granting Vargo's motion for summary judgment.

{¶ 16} In opposing Vargo's summary judgment motion, the Montgomerys argued that the doctrine of res judicata was inapplicable. In support of their position, they attached an affidavit of Simon Montgomery to their brief in opposition. In his affidavit, Simon averred, in relevant part,

2. The problem that gave rise to the instant lawsuit concerning flooding in the basement involved a situation in which [Vargo] failed to make repairs and report the damages of which he was aware, and he also concealed these problems in the instant lawsuit by painting over them and covering them with drywall; and
3. I was not aware of [Vargo's] knowledge about the problems with flooding in the basement at this property until January 28, 2015.

{¶ 17} In other words, the Montgomerys asserted that they had not discovered that Vargo was aware of and concealed the basement's flooding problem when they filed their original complaint on October 20, 2014.

{¶ 18} In its judgment entry, the trial court stated that the Montgomerys' argument that they were not aware of Vargo's knowledge about the basement's flooding problem until January 28, 2015, was not sufficient to defeat res judicata. This statement-that newly discovered evidence of a concealed defect would not defeat the application of res judicata-is not accurate.

{¶ 19} A previously undiscovered claim arising from newly discovered facts is not barred by the doctrine of res judicata. In Stand Energy Corp. v. Ruyan , 1st Dist. Hamilton No. C-050004, 2005-Ohio-4846, 2005 WL 2249107, the First District explained that "[i]n the absence of changed circumstances or newly discovered grounds for relief, the trial court correctly held that res judicata barred [appellant's] attempt to relitigate [its claim] against [appellee.]" Id. at ¶ 15, citing State ex rel. Westchester Estates, Inc. v. Bacon , 61 Ohio St.2d 42, 45, 399 N.E.2d 81 (1980) (the doctrine of res judicata and the doctrine of collateral estoppel will not bar litigation of an issue in a later action where "there has been a change in the facts in a given action which either raises a new material issue, or which would have been relevant to the resolution of a material issue involved in the earlier action[.]"); see Dinks II Co. v. Chagrin Falls Village Council , 8th Dist. Cuyahoga No. 84939, 2005-Ohio-2317, 2005 WL 1118160, ¶ 25, citing Chagrin Falls v. Geauga Cty. Bd. of Commrs. , 11th Dist. Geauga No. 2003-G-2530, 2004-Ohio-5310, 2004 WL 2803233, ¶ 46 ("in order to avoid the application of res judicata, [appellee] was required to establish a change that raised a new material issue relating to its second variance application or a change relevant to the resolution of a material issue involved in the original petition.").

{¶ 20} Thus, res judicata would not bar a claim that is based on newly discovered evidence of a concealed defect. If the Montgomerys' assertion were true-that after they filed the original complaint in October 2014, they discovered that Vargo had knowledge of and concealed the basement's flooding problem-then their claims for fraud and fraudulent inducement would not be barred by res judicata because they would not arise until discovery.

{¶ 21} But the record reflects that the Montgomerys were aware of the flooding problems shortly after they moved into the house. See Complaint at ¶ 16 ("[s]hortly after moving into the property, the [Montgomerys] began to experience severe problems related to water infiltration in their basement."). Accordingly, the claims the Montgomerys asserted in the second complaint were not newly discovered.

{¶ 22} In light of the above, res judicata barred this action, and the Montgomerys' sole assignment of error is overruled.

{¶ 23} Judgment affirmed.

KATHLEEN ANN KEOUGH, P.J., and FRANK D. CELEBREZZE, JR., J., CONCUR

      The complaint refers to Section K, but it is clear that is a typographical error and the relevant section is Section J.


author: MELODY J. STEWART, J.:

text:
    STATE of Ohio, Plaintiff-Appellee v. Keisha EVANS, Defendant-Appellant
    No. 105687
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: March 1, 2018
    Paul A. Mancino, Jr., Mancino Mancino & Mancino, 75 Public Square Building, Suite 1016, Cleveland, OH 44113, ATTORNEY FOR APPELLANT
    Michael C. O'Malley, Cuyahoga County Prosecutor, Christine M. Vacha, Assistant County Prosecutor, Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, OH 44113, ATTORNEYS FOR APPELLEE
    BEFORE: Stewart, J., E.T. Gallagher, P.J., and S. Gallagher, J.
    JOURNAL ENTRY AND OPINION
   MELODY J. STEWART, J.:

{¶ 1} Federal agents in California attached a GPS tracking device to a package of marijuana that had been shipped to the Cleveland area. That package found its way into a vehicle driven by defendant-appellant Keisha Evans, leading to her conviction on a single count of drug possession. In this appeal, she complains: (1) that there was insufficient evidence to show that she knowingly possessed a controlled substance; (2) that the court erred by denying her motion to suppress evidence seized in a search of her house; (3) that the court erred by ordering her to forfeit her vehicle; (4) that the court erred by refusing to allow her to call a witness; and (5) that the court erred by limiting cross-examination. We find no error and affirm.

I. Insufficient Evidence

{¶ 2} Because it is potentially dispositive, we first consider Evans's argument that the state failed to present sufficient evidence of drug possession. She maintains that the state did not show that she had knowledge of the contents of the package.

{¶ 3} The state charged Evans with drug possession under R.C. 2925.11(A). That section states that no person shall knowingly possess marijuana in an amount exceeding 5,000 grams but is less than 20,000 grams. "Possession" in this context means "having control over a thing or substance, but [possession] may not be inferred solely from mere access to the thing or substance through ownership or occupation of the premises upon which the thing or substance is found." R.C. 2925.01(K).

{¶ 4} The evidence showed that federal agents in California became suspicious of two identical packages, mailed through a delivery service account to a Cleveland residence. A drug-sniffing dog alerted to the presence of drugs. The agents obtained a search warrant and opened one of the packages to discover bricks of marijuana. The federal agents coordinated with Cleveland police to send the remaining unopened package to Cleveland. A drug-sniffing dog in Cleveland alerted to the presence of marijuana in that package. Concerned that opening the package might alert its recipient, the police obtained a warrant to place a GPS tracking beacon on the package. The police conducted a controlled delivery of the package. Several vehicles later arrived at the house and the officers conducting surveillance noticed from the tracking beacon that the package had been moved throughout the house. The tracking beacon then went silent, consistent with it programming to enter "sleep" mode when not moving. Evans left the house and the beacon reactivated. Because the beacon had a 30-second delay upon exiting sleep mode, the officers concluded that Evans left with the package. A marked police car stopped Evans's vehicle. The police located the package in the rear of the vehicle. They opened the package and discovered that it contained almost 25 pounds of marijuana. The police subsequently obtained a warrant to search Evans's house. That search uncovered evidence of marijuana, scales, a vacuum sealing machine, and a coat containing $18,000 in cash wrapped in aluminum foil and plastic wrap.

{¶ 5} Evans testified that she had no knowledge of what the package contained; she claimed that a friend asked her to pick up and deliver the package. She admitted that she had a similar delivery for the friend about six weeks previously, and that she had been paid $500. The marijuana found in Evans's house was stored in suitcases. Evans testified that she had only lived in the house for just over a month and that she did not own the suitcases, but conceded the suitcases were not leftover from the previous tenant. With respect to the cash found in the house, Evans testified that her oldest son's father gave her the money to use as college tuition for the son. She admitted that the money had been wrapped in plastic and placed in a coat that she stored in a closet.

{¶ 6} Viewing these facts and all permissible inferences in favor of the state, State v. Kirkland , 140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 138, we conclude that the state presented sufficient evidence that Evans possessed the drugs found in her vehicle. A rational trier of fact could infer from the trial testimony that Evans picked up the package and placed it in her vehicle, a fact established when the police found the package in her vehicle. The sole question was whether she knew that the package contained drugs. The jury could rationally infer that Evans knew the package contained drugs. She had previously been paid $500 to deliver a similar package. This was such a large amount of money for such a mundane task that Evans would, or should, reasonably have understood that she was being compensated based on the contents of the package rather than the effort it took to deliver it. And when evidence of marijuana, scales that could be used to weigh drugs, a vacuum sealer that could be used to package drugs, and the large of amount of wrapped cash hidden in the coat are considered together with the amount of money that Evans had previously been paid to deliver a similar package, a strong inference arises that Evans knew the package contained marijuana.

II. Motion to Suppress

{¶ 7} Following Evans's arrest, the police went to the address listed on her driver's license. It turned out that the address was not current (a different person lived there). The police found a second address listed on checks that Evans carried in her purse. They arrived at the house to find an open door. Officers entered the house to secure the premises and then waited outside until they obtained a search warrant for the premises. Evans argues that the police illegally attached a GPS tracking device to the package, they had no right to search her purse, and that they illegally entered her home.

{¶ 8} Beginning first with the GPS tracking device, Evans maintains that the police installed the device without first obtaining a warrant as required by the Fourth Amendment to the United States Constitution. We can summarily reject this argument because the record shows that the police did obtain a search warrant to place the GPS tracking device. United States v. Jones , 565 U.S. 400, 404, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) In any event, Evans lacked standing to challenge the placing of the GPS tracking device on the package because she was neither the sender nor addressee of the package and demonstrated no reasonable expectation of privacy in the package. United States v. Lozano , 623 F.3d 1055, 1063-1064 (9th Cir.2010) (O'Scannlain, J., concurring).

{¶ 9} The search of Evans's purse fell within well-established law that a law enforcement officer may conduct a warrantless search of both the arrestee and the area within the individual's immediate control whenever the search is incident to a lawful arrest. Chimel v. California , 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Evans does not claim that the police lacked probable cause to arrest her for possession of drugs. Because her arrest was lawful, the police could validly search her purse. State v. Washington , 10th Dist. Franklin No. 00AP-663 (May 1, 2001), 2001 WL 436062 (holding a police officer was authorized to search appellant's purse under the search incident to lawful arrest exception to the warrant requirement).

{¶ 10} Evans's final argument is that the police unlawfully entered her residence. The evidence showed that the police went to the address listed on Evans's driver's license, but discovered that she no longer lived there. A checkbook discovered in her purse listed a different home address. As an application for a search warrant was prepared for the new address in the checkbook, police officers responded to the new address. Claiming that the door to the residence had been open, the police entered the residence and found mail addressed to Evans. The police then made a protective sweep of the premises and secured it pending issuance of the search warrant. It was only after securing the search warrant that the police uncovered the drugs, money, and drug paraphernalia.

{¶ 11} The exclusionary rule states that evidence obtained in violation of the Fourth Amendment may not be introduced at trial to prove a defendant's guilt. State v. Leak , 145 Ohio St.3d 165, 2016-Ohio-154, 47 N.E.3d 821, ¶ 34. Even if we assume without deciding that the police had no cause to enter Evans's home, there was nothing for the court to suppress because the police did not seize any evidence at that time. The facts show that the police conducted a brief protective sweep of the house to ensure that no one was inside. It was only after the police obtained and executed the search warrant-the validity of which Evans does not dispute-that they discovered the drugs, cash, and paraphernalia that were introduced at trial.

III. Witness Confrontation

{¶ 12} During cross-examination of several law enforcement officers, the court sustained objections by the state to questions touching on the validity of the search warrants. Evans complains that by sustaining the objections, the court denied her right to confront witnesses.

{¶ 13} The Confrontation Clause of the Sixth Amendment to the United States Constitution grants a criminal defendant the right to cross-examine adverse witnesses. That right does not extend, however, to irrelevant evidence. See Evid.R. 402 ("Evidence which is not relevant is not admissible."). The questions asked by defense counsel all related to issues that were resolved in the suppression hearing: the contents of the application for a search warrant, and what items were listed in the warrant, and how the search had been executed. These issues had been decided adversely to Evans in the suppression hearing. The court did not abuse its discretion by refusing to allow her to relitigate them at trial. State v. Albanese , 11th Dist. Portage No. 2005-P-0054, 2006-Ohio-4819, ¶ 57, 2006 WL 2662720.

IV. Forfeiture

{¶ 14} Evans complains that the court erred by ordering her to forfeit her automobile, cell phone, digital scale, and other drug paraphernalia even though these same items were the basis of a possession of criminal tools count for which she was found not guilty. We summarily reject this argument because the drug possession count properly sought forfeiture of these items as allowed by R.C. 2941.1417(A). They were instrumentalities used in the commission of a criminal offense, even if the jury had a reasonable doubt that these items had been possessed with a purpose to use them criminally. State v. Fannin , 8th Dist. Cuyahoga No. 79991, 2002-Ohio-6312, ¶ 84, 2002 WL 31618484 ; State v. Parks , 8th Dist. Cuyahoga No. 90368, 2008-Ohio-4245, 2008 WL 3870615, ¶ 26.

{¶ 15} Evans also argues that there was no evidence that she used the vehicle to facilitate the commission of drug possession. We disagree. The evidence showed that Evans used her vehicle to transport the drugs. And, as previously discussed, the state offered compelling evidence from which a rational trier of fact could conclude that Evans was more than just an innocent porter of the package. The evidence may have been circumstantial, but it nonetheless supported a jury verdict that Evans used the vehicle to facilitate the offense of drug possession. State v. Fort , 2014-Ohio-3412, 17 N.E.3d 1172, ¶ 20 (8th Dist.).

{¶ 16} Judgment affirmed.

EILEEN T. GALLAGHER, P.J., and SEAN C. GALLAGHER, J., CONCUR


author: SEAN C. GALLAGHER, J.:

text:
    CITY OF CLEVELAND, Plaintiff-Appellant v. Calvin MARTIN, Defendant-Appellee
    No. 105420
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: March 1, 2018
    Barbara A. Langhenry, City of Cleveland, Director of Law, By: Lorraine Coyne, Assistant Prosecutor, 1200 Ontario Street, 8th Floor, Cleveland, Ohio 44113, Kimberly G. Barnett-Mills, Legal Aid Society of Cleveland, 1223 West Sixth Street, Cleveland Ohio 44113, ATTORNEYS FOR APPELLANT
    Daniel J. Wodarczyk, Douglass & Associates Co., L.P.A., 4725 Grayton Road, Cleveland, Ohio 44135, Britt Newman, 1280 West Third Street, First Floor, Cleveland, Ohio 44113, Eric Norton Norton, Law Firm Co., L.P.A., Cedar-Grandview Building, Suite 6, 12434 Cedar Road, Cleveland Heights, Ohio 44106, ATTORNEYS FOR APPELLEE
    BEFORE: S. Gallagher, J., Keough, P.J., and Celebrezze, J.
    JOURNAL ENTRY AND OPINION
   SEAN C. GALLAGHER, J.:

{¶ 1} The city of Cleveland appeals from the interlocutory judgment granting Calvin Martin's motion to suppress all evidence obtained during a traffic stop. We reverse and remand for further proceedings.

{¶ 2} Martin was charged with violations of R.C. 4511.33, marked lane violations; R.C. 4510.11(A), driving under a suspended license; and R.C. 4511.19(A), operating a vehicle while under the influence of alcohol. Martin filed a motion to suppress all evidence. He claims that the arresting police officer did not articulate a reasonable suspicion justifying the initial stop based on the strength of the city's evidence in support of the marked lane violation. According to Martin, the recording of the traffic encounter demonstrated that although the tires of Martin's vehicle touched the lane boundary lines on several occasions, the evidence was insufficient to definitively prove that the tires completely crossed the boundary markers. In the alternative, Martin claims that even if the stop was valid, the officer lacked a reasonable and articulable suspicion justifying the administration of field sobriety tests and that those tests were not conducted according to the National Highway Traffic Safety Administration standards.

{¶ 3} The arresting officer encountered Martin around 2:00 a.m. on a Sunday morning driving in the rightmost, eastbound lane on I-90. The officer witnessed Martin drift over the white hash marks of an exit lane, lazily veer back into the through lane, and cross over the solid white line dividing the exit lane and the shoulder of the highway before drifting back into the through lane. After the second perceived infraction, the officer initiated a traffic stop.

{¶ 4} While approaching the vehicle, the officer detected an odor of alcohol in the vehicle compartment and he also noticed that Martin's eyes were bloodshot. The officer asked Martin for his driver's license, and Martin admitted he was driving under suspension. Martin was then removed from his vehicle and acknowledged his rights under Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The officer noted that the odor of alcohol followed Martin, who admitted the consumption of one or two alcoholic drinks that evening. Because of the erratic driving, Martin's bloodshot eyes, and the persistent odor of alcohol, the officer proceeded to administer field sobriety tests. Martin failed the tests and was arrested for driving under the influence of alcohol.

{¶ 5} The trial court suppressed all of the city's evidence, even the evidence supporting the marked lane violation and the driving under suspension. Tr. 66:4-12 (for "the driving under the influence charge, I think that the tests are suppressed. But as it relates to the rest of the stop, I'm thinking your predicate is also suppressed too."). According to the trial court, the marked lane violation that occurred was minor, and therefore, the officer lacked reasonable suspicion justifying the initial traffic stop. Further, the trial court concluded that the officer's observation of the odor of alcohol and bloodshot eyes was insufficient to support a reasonable and articulable suspicion justifying the administration of the field sobriety tests.

{¶ 6} Appellate review of a motion to suppress involves mixed questions of law and fact. "When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses." State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8, citing State v. Mills , 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). The trial court's findings of fact must be accepted only if supported by competent, credible evidence. Id. , citing State v. Fanning , 1 Ohio St.3d 19, 437 N.E.2d 583 (1982). After "[a]ccepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard." Id. , citing State v. McNamara , 124 Ohio App.3d 706, 707 N.E.2d 539 (4th Dist.1997). The facts are undisputed in this case; the only issue is the application of the facts to the law and the legal conclusions that are drawn from the trial court's review of the evidence.

{¶ 7} The trial court erred in suppressing the evidence of Martin's marked lane violation and Martin's admission to driving under suspension. The trial court concluded that a marked lane violation occurred, but that the violation was minimal. It is well settled that "[a]n officer is not required to determine whether someone who has been observed committing a crime might have a legal defense to the charge." State v. Mays , 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 17. Martin's sole defense to the traffic violation was that the strength of the city's evidence in support of a marked lane violation was questionable in light of the distorted depiction of the violation in the grainy dashboard camera footage. Although this may be grounds to challenge the merits of the charge, an officer need only form a reasonable and articulable suspicion that a crime occurred in order to initiate a traffic stop; he need not disprove all potential defenses to the criminal act. Id.

{¶ 8} In this case, the dashboard camera footage depicted at least two instances when it could not be readily discerned whether a marked lane violation actually occurred. R.C. 4511.33 (A)(1) provides that a vehicle must "be driven, as nearly as is practicable, entirely within a single lane or line of traffic and shall not be moved from such lane or line until the driver has first ascertained that such movement can be made with safety." The officer believed that he witnessed such a violation, and he testified that although the dashboard camera footage was not clear, it depicted the tire completely crossing the boundary line. The trial court agreed that in at least one of the instances, the footage arguably depicted Martin's vehicle completely violating the boundary of his lane of travel. The initial stop was constitutionally valid.

{¶ 9} That the violations appeared minimal or de minimis in nature is irrelevant. Dayton v. Erickson , 76 Ohio St.3d 3, 665 N.E.2d 1091 (1996), syllabus. "Trial courts determine whether any violation occurred , not the extent of the violation." (Emphasis sic.) State v. Hodge , 147 Ohio App.3d 550, 2002-Ohio-3053, 771 N.E.2d 331, ¶ 27 (7th Dist.).

{¶ 10} Our decision should not be interpreted to mean "that movement within one lane is a per se violation giving rise to reasonable suspicion." Mays at ¶ 20, citing Hodge at ¶ 45. "[I]nconsequential movement within a lane [does not] give law enforcement carte blanche opportunity to make an investigatory stop." Id. Nevertheless, when an "officer could reasonably conclude from a person's driving outside the marked lanes that the person is violating a traffic law, the officer is justified in stopping the vehicle." Id. Further, even if an infraction is not observed, an officer has a duty to investigate erratic driving in order to protect the public, and the driver himself, from driving while under the influence, driving while mentally fatigued, or even from driving with some mechanical defect of the vehicle. Hodge at ¶ 46 ; Chagrin Falls v. Bloom , 8th Dist. Cuyahoga No. 101686, 2015-Ohio-2264, 2015 WL 3632028, ¶ 9. Courts cannot impose a requirement on officers to definitively prove that a traffic violation occurred to justify the initial stop in all situations. In some cases, that may preclude officers from fulfilling their duty to the public at large.

{¶ 11} Nevertheless, the trial court in this case concluded that a marked lane violation occurred, but that the violation was nonetheless minor. Having concluded that a violation occurred, the stop is not unreasonable regardless of the extent of that violation. Erickson at syllabus.

{¶ 12} During the initial stages of that valid traffic stop, the officer asked Martin for his driver's license. Martin admitted he was driving under suspension, as defined under R.C. 4510.11(A), and that he could not produce a valid license. Martin could not be allowed to drive away, and the failure to produce a valid driver's license transformed the nature of the traffic stop. In light of the admission, the officer was justified in removing Martin from the driver's seat. As a result, the trial court erred in suppressing the evidence related to the driving under a suspended license charge.

{¶ 13} Once removed from the vehicle, Martin was advised, and voluntarily waived, his rights under Miranda . Martin then admitted he had consumed one or two alcoholic drinks that evening. In consideration of the erratic driving, the odor of alcohol that followed Martin, Martin's bloodshot eyes, Martin's admission to consuming alcoholic beverages, and the time of day, the trial court erred in suppressing the results of the field sobriety tests. We acknowledge that the officer did not testify to relying on Martin's admission regarding the consumption of alcohol. The dashboard camera footage is part of the trial record, and as such, it was part of the facts to be considered.

{¶ 14} Once a driver has been lawfully stopped, an officer may not administer field sobriety tests unless the invasion of privacy is separately justified by a reasonable suspicion based upon articulable facts that the motorist is impaired. Parma Hts. v. Dedejczyk , 8th Dist. Cuyahoga No. 97664, 2012-Ohio-3458, 2012 WL 3133243, ¶ 29, citing State v. Evans , 127 Ohio App.3d 56, 62, 711 N.E.2d 761 (11th Dist.1998). Importantly, reasonable suspicion does not require an officer to observe and relate overt signs of intoxication. "A court will analyze the reasonableness of the request based on the totality of the circumstances, viewed through the eyes of a reasonable and prudent police officer on the scene who must react to events as they unfold." Cleveland v. Maxwell , 8th Dist. Cuyahoga No. 104964, 2017-Ohio-4442, 2017 WL 2691796, ¶ 20, citing State v. Dye , 11th Dist. Portage No. 2001-P-0140, 2002-Ohio-7158, 2002 WL 31862667, ¶ 18. In Evans , the court outlined a nonexclusive list of factors to consider in making this determination. The factors include the following:

(1) the time and day of the stop (Friday or Saturday night as opposed to, e.g. , Tuesday morning);
(2) the location of the stop (whether near establishments selling alcohol);
(3) any indicia of erratic driving before the stop that may indicate a lack of coordination (speeding, weaving, unusual braking, etc.);
(4) whether there is a cognizable report that the driver may be intoxicated;
(5) the condition of the suspect's eyes (bloodshot, glassy, glazed, etc.);
(6) impairments of the suspect's ability to speak (slurred speech, overly deliberate speech, etc.);
(7) the odor of alcohol coming from the interior of the car, or, more significantly, on the suspect's person or breath;
(8) the intensity of that odor, as described by the officer ("very strong," "strong," "moderate," "slight," etc.);
(9) the suspect's demeanor (belligerent, uncooperative, etc.);
(10) any actions by the suspect after the stop that might indicate a lack of coordination (dropping keys, falling over, fumbling for a wallet, etc.); and
(11) the suspect's admission of alcohol consumption, the number of drinks had, and the amount of time in which they were consumed, if given.

Evans at 63, fn. 2, 711 N.E.2d 761. No single factor controls the outcome.

{¶ 15} Martin was pulled over at 2:00 a.m. on a Sunday morning having been observed committing a marked lane violation, which is some evidence of erratic driving. Although the marked lane violation would not be sufficient to justify the field sobriety tests in and of itself, the officer noted the odor of alcohol upon approaching Martin's vehicle and described Martin's eyes as being bloodshot. Martin admitted to having consumed "one or two" alcoholic drinks that evening. Although the officer did not expressly describe the intensity of that odor, he described the odor as being persistent, in that it followed Martin when he was lawfully removed from the vehicle. The fact that the odor followed Martin was indicative of more than the slight odor of alcohol deemed insufficient in some cases. See, e.g., State v. Andrews , 2017-Ohio-1383, 89 N.E.3d 157, ¶ 58.

{¶ 16} Martin places undue emphasis on the officer's lack of a descriptive modifier in describing the intensity of the alcoholic odor. There is no requirement under Ohio law that a police officer specify the perceived strength of the odor in support of a reasonable articulable suspicion of driving under the influence of alcohol. It is but one factor for consideration under the totality of the circumstances. Evans. In Mays , for example, it was concluded that the officer's observation of two possible marked lane violations, the unspecified intensity of an odor of alcohol in the vehicle, and the observation of bloodshot and glassy eyes supported a determination that the officer had probable cause to arrest the driver for driving under the influence. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, at ¶ 3, 21 ("the trooper had probable cause to arrest [the defendant] for driving while under the influence.

We find no error in the trooper's decision"). Probable cause is a higher standard than reasonable and articulable suspicion and "the former subsumes the latter." Id. at ¶ 23, citing State v. Evans , 67 Ohio St.3d 405, 411, 618 N.E.2d 162 (1993). The city's burden to demonstrate reasonable and articulable suspicion of driving while under the influence of alcohol is not a high one. See, e.g., State v. Rice , 1st Dist. Hamilton Nos. C-160668, C-160669, and C-160670, 2017-Ohio-9114, 2017 WL 6508720 (there is no requirement that an officer detect the odor of alcohol on or about the person in order to support a reasonable and articulable suspicion of driving under the influence).

{¶ 17} Although the intensity of the odor of alcohol is a factor to consider, the failure to be descriptive is not dispositive, especially when intensity can be inferred through context. In this case, the fact that the odor persisted with Martin's movement provides the context within which the officer reasonably formed his suspicion of impairment. Martin asks us to disregard the olfactory observation solely because the officer failed to provide a rote description of the odor's intensity. The failure to specify the odor's intensity was not dispositive in Mays, and therefore, it cannot be in this case.

{¶ 18} We have not been presented with a situation where a de minimis traffic violation and a slight odor of alcohol were the only factors justifying the field sobriety tests. The initial traffic stop and removal of Martin from his vehicle were independently justified based on the trial court's conclusion that marked lane violations occurred and based on Martin's admission to driving while under suspension. After waiving his rights, Martin admitted to consuming one or two alcoholic beverages. The officer noticed that Martin's eyes were bloodshot, and the officer detected a persistent odor of alcohol coming from Martin himself. Finally, it was 2:00 a.m. on a Sunday morning and the officer testified to basing his suspicion in part on Martin's driving behavior.

{¶ 19} Although the remaining Evans factors are not present or discussed, police officers are not required to produce evidence supporting every factor in order to articulate a reasonable suspicion that the driver was impaired. Nor are police officers required to obtain evidence demonstrating overt intoxication, such as slurred speech or stumbling, sloppy behaviors, in order to justify the administration of field sobriety tests.

{¶ 20} As it stands, R.C. 4511.19(A) penalizes motorists for driving a vehicle while under the influence of alcohol. The phrase "under the influence" has been defined as

the condition in which a person finds himself after having consumed some intoxicating beverage in such quantity that its effect on him adversely affects his actions, reactions, conduct, movement or mental processes or impairs his reactions to an appreciable degree, thereby lessening his ability to operate a motor vehicle.

State v. Carozza , 2015-Ohio-1783, 33 N.E.3d 556, ¶ 22 (5th Dist.), quoting Toledo v. Starks , 25 Ohio App.2d 162, 166, 267 N.E.2d 824 (6th Dist.1971). "Under the influence" means that the accused consumed some intoxicating beverage, in such a quantity "whether small or great" that adversely affected the accused's ability to operate a vehicle. Id. Not every case will involve overt signs of intoxication or violations of the traffic laws, and we cannot create such a requirement before the field sobriety tests are deemed constitutionally valid. Bloom , 8th Dist. Cuyahoga No. 101686, 2015-Ohio-2264, 2015 WL 3632028, at ¶ 9.

{¶ 21} When all the applicable factors are considered in this case, the officer articulated a reasonable suspicion justifying the administration of field sobriety tests in consideration of Martin's driving behavior, his bloodshot eyes, the odor of alcohol, and Martin's admission to consuming alcoholic beverages before driving. The trial court erred in suppressing the field sobriety tests. The decision of the trial court is reversed, and the matter is remanded for further proceedings.

KATHLEEN ANN KEOUGH, P.J., and FRANK D. CELEBREZZE, JR., J., CONCUR

      Martin has not asked this court to affirm the trial court's decision on other grounds. App.R. 3(C)(2) and App.R. 16(A)(7).


text:
    Ernest BOAEUF, et al., Plaintiffs-Appellees v. MEMPHIS STATION, L.L.C., Defendant-Appellant
    No. 105799
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: March 1, 2018
    Charles W. Zepp, Seeley, Savidge, Ebert & Gourash Co., L.P.A., 26600 Detroit Avenue, 3rd Floor, Cleveland, OH 44145, ATTORNEY FOR APPELLANT.
    Gerry Davidson, William S. Creighton, Jeffrey J. Fanger, Fanger & Associates, L.L.C., 36 Alpha Park, Highland Hts., OH 44143, Nicholas Weiss, 100 North Main Street, Suite 300, Chagrin Falls, OH 44022, John F. McIntyre, 3200 West Market Street, Suite 106, Akron, OH 44333, ATTORNEYS FOR APPELLEES.
    BEFORE: Stewart, J., E.A. Gallagher, A.J., and Laster Mays, J.
    JOURNAL ENTRY AND OPINION
   MELODY J. STEWART, J.:

{¶ 1} Plaintiff-appellee Ernest Boaeuf, through his corporation Memphis March 2014, L.L.C., and defendant-appellant Memphis Station, L.L.C., entered into an asset purchase agreement for the sale of a bar and grill, and liquor permit. Boaeuf began operating the tavern, but made only one full payment and one partial payment on a cognovit note that he issued to Memphis Station. Memphis Station obtained a cognovit judgment and then sold all of the assets included in the asset purchase agreement, including the liquor permit, to another buyer. Boaeuf brought this action against Memphis Station, raising several claims, only one of which survived trial-a conversion claim relating to the sale of the bar assets to a third party. The magistrate who conducted the trial found that Memphis Station's sale of the bar assets to another buyer was an unauthorized act of dominion over assets belonging to Boaeuf. The magistrate ordered damages of $25,000 for the liquor permit, $30,000 for the bar assets, $20,000 in punitive damages, and attorney fees in the stipulated amount of $24,000. The court approved and adopted the magistrate's decision over objections by Memphis Station.

{¶ 2} On appeal, Memphis Station argues that the court erred by rejecting its claim that Boaeuf's abandonment of the premises was a defense to the conversion claim, that the court's valuation of the business assets was against the manifest weight of the evidence, and that the court erred by awarding punitive damages and attorney fees.

I. Abandonment

{¶ 3} Memphis Station argues that the evidence showed that Boaeuf abandoned the premises before it sold the bar assets to another party, thus defeating the conversion claim.

{¶ 4} "[C]onversion is the wrongful exercise of dominion over property to the exclusion of the rights of the owner, or withholding it from his possession under a claim inconsistent with his rights." Joyce v. Gen. Motors Corp. , 49 Ohio St.3d 93, 96, 551 N.E.2d 172 (1990).

{¶ 5} This case is an example of the common law maxim nemo dat quod non habet (also known as the nemo dat rule): "No one in general can sell personal property and convey a valid title to it unless he is the owner or lawfully represents the owner." Mitchell v. Hawley , 83 U.S. 544, 550, 16 Wall. 544, 21 L.Ed. 322 (1872). When Memphis Station sold the bar assets to Boaeuf, it gave up any right or title to those assets; they belonged to Boaeuf. By selling bar assets that it no longer held title to, Memphis Station converted Boaeuf's assets.

{¶ 6} Memphis Station does not dispute these legal principles, but argues that Boaeuf had closed the bar and permanently abandoned the bar assets. Indeed, abandonment of property-where the owner has relinquished all right, title, claim, and possession with the intention of not reclaiming it or resuming its ownership, possession, or enjoyment-is an affirmative defense to conversion. McCain v. Brewer , 2d Dist. Darke No. 2014-CA-8, 2015-Ohio-198, 2015 WL 302829, ¶ 17. Memphis Station supports its abandonment argument by citing Boaeuf's testimony that the bar business was "not the kind of business that I wanted to be in" and that "in my mind the deal was over" and "so we walked away."

{¶ 7} Memphis Station does not give full context to Boaeuf's testimony. The evidence showed that Boaeuf had been managing the bar because it "didn't have a liquor license, and we didn't have a lease." The evidence showed that the Ohio Department of Liquor Control cancelled the application to have the liquor permit transferred to Boaeuf. And as he managed the business while waiting for the transfer of the liquor permit, Boaeuf discovered that some of the bar customers were drug dealing from the bar. When he barred those people from the premises, "the business just evaporated." These two factors-the liquor permit and the clientele-are what caused Boaeuf to "walk away" from operating the bar.

{¶ 8} The law makes it clear that "[m]ere non-use is not sufficient to establish the fact of abandonment, absent other evidence tending to prove the intent to abandon." Perez Bar & Grill v. Schneider , 9th Dist. Lorain No. 11CA010076, 2012-Ohio-5820, 2012 WL 6105324, ¶ 32. Boaeuf's trial testimony that he decided to "walk away" from the bar business did not necessarily mean that he had abandoned the bar assets. Indeed, he testified that despite closing the bar, he intended to sell the bar assets to pay off the outstanding balance on the cognovit note. And we note that Boaeuf's statement about walking away from the bar business was made at trial; Memphis Station offered no evidence to show that it confirmed Boaeuf's intentions prior to selling the bar assets to the third party. This was an important omission because Memphis Station had already received a cognovit judgment for the contract price of the bar assets. We conclude that the court relied on competent, credible evidence to find that Memphis Station wrongly equated Boaeuf's non-use of the bar assets as abandoning those assets. C.E. Morris Co. v. Foley Constr. Co. , 54 Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus.

II. Value of Assets

{¶ 9} Memphis Station next complains that the court's valuation of the bar assets at $30,000 was against the manifest weight of the evidence. It claims the only evidence for this valuation came from a Boaeuf witness who conceded that he was not a professional appraiser and who offered a "guesstimate" of value if the assets were sold at auction. They believe that the court should have found that the assets were worth only $13,545 based on the subsequent sale of the liquor permit and bar assets to a third party for $39,000, less the $25,000 stipulated value of the liquor permit.

{¶ 10} Although Memphis Station calls into question the bona fides of Boaeuf's appraiser, it does not claim that the court erred by allowing the appraiser to offer a valuation. In fact, the appraiser testified that he operated an auction house that would buy, consign, or auction restaurant equipment. He testified that he had been approached by the third-party buyer and asked for his opinion on the value of the bar assets. As a courtesy to her, the appraiser gave an auction estimate for the equipment that the buyer used in her negotiations with Memphis Station.

{¶ 11} It is true that the buyer managed, after "back and forth" negotiations, to persuade Memphis Station to agree to sell the bar assets for less than their appraised value. Normally, the price agreed to in an arms-length transaction for the sale of property is considered the best evidence of the property's value. Terraza 8, L.L.C. v. Franklin Cty. Bd. of Revision , 150 Ohio St.3d 527, 2017-Ohio-4415, 83 N.E.3d 916, ¶ 33. That rule, however, is not absolute. The buyer testified she negotiated the price by telling Memphis Station that "you happen to have all this equipment that has now fallen into your lap." To be sure, the buyer did not know at the time that Boaeuf still held title to the bar assets. Nevertheless, she testified that she got "a very good deal" on the purchase price and that she paid "way under market" for the bar assets. The court could rationally have concluded that Memphis Station sold the bar assets below their true market value, so its decision to reject the sale price and assign a higher value to the bar assets was supported by competent, credible evidence.

III. Punitive Damages and Attorney Fees

{¶ 12} The court adopted the magistrate's decision to award punitive damages on evidence that Memphis Station, while not acting with hatred or ill will, nonetheless showed a conscious disregard of Boaeuf's rights and acted with a great probability of causing substantial harm. These findings also caused the magistrate to award attorney fees. Memphis Station argues that the court failed to recognize mitigating circumstances; namely, that Boaeuf "walked away" from the bar.

{¶ 13} "Actual malice, necessary for an award of punitive damages, is (1) that state of mind under which a person's conduct is characterized by hatred, ill will or a spirit of revenge, or (2) a conscious disregard for the rights and safety of other persons that has a great probability of causing substantial harm." Preston v. Murty , 32 Ohio St.3d 334, 334, 512 N.E.2d 1174 (1987), syllabus. "An award of punitive damages based on conscious disregard malice requires 'a positive element of conscious wrongdoing[.]' " Malone v. Courtyard by Marriott Ltd. Partnership , 74 Ohio St.3d 440, 446, 659 N.E.2d 1242 (1996), citing Preston , 32 Ohio St.3d at 335, 512 N.E.2d 1174. This is a requirement that the party "possess knowledge of the harm that might be caused by his behavior." Preston, supra .

{¶ 14} The facts supporting the conversion claim are competent, credible evidence that Memphis Station sold the bar assets with a conscious disregard for Boaeuf's rights and that its actions had a great probability of causing substantial harm. There was no question that Memphis Station sold the bar assets to a third party despite having received a judgment on the cognovit note. And negotiations with the third party occurred despite Boaeuf having a pending replevin action for the bar assets. That a replevin action was pending before the sale to the third party had been completed was persuasive evidence that Memphis Station did not act under the mistaken belief that Boaeuf abandoned the bar assets. Indeed, the magistrate found that Memphis Station "engaged in self-help as there are no U.C.C. statements, security agreements, or other documents authorizing [Memphis Station] to sell the assets owned by [Boaeuf] to another party." Boaeuf intended to sell the bar assets to offset the cognovit judgment. By selling the bar assets to a third party, Memphis Station not only caused substantial financial harm to Boaeuf, it enriched itself beyond the amount it received in the cognovit judgment.

{¶ 15} With an award of punitive damages justified, the court did not err by adopting the magistrate's decision to award attorney fees. Attorney fees are proper when the court has awarded punitive damages. Pyle v. Pyle , 11 Ohio App.3d 31, 35, 463 N.E.2d 98 (8th Dist.1983). Memphis Station does not make any argument that attorney fees were unwarranted apart from its argument that punitive damages were unjustified. If punitive damages were justified, so too, were attorney fees.

{¶ 16} Judgment affirmed.

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