THE COURT OF APPEALS OF OHIO SECOND APPELLATE ...

THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

CASE SUMMARIES 

October 12, 2012 

These case summaries are issued for the convenience of the public, the bench and 

the bar. They are a brief statement of the holding of the court in the matter noted. 

They are not to be considered headnotes or syllabi. Readers may obtain copies of 

an opinion from the particular county's clerk of courts. The full text of each opinion is 

also available at the Ohio Supreme Court Website at www.sc.ohio.gov 

Case Name: State of Ohio v. Buster R. Morgan 

Case No: Clark App. No. 2012-CA-06 

Panel: Grady, Froelich, Hall 

Author: Michael T. Hall 

Summary: The trial court did not err in dismissing misdemeanor charges against 

the appellant “without prejudice” rather than “with prejudice.” The 

record does not reflect that the statutory speedy-trial time expired 

before the trial court dismissed the charges, and no excessive preindictment 

delay existed at that time. Judgment affirmed. (Grady, 

P.J., concurring.) 

Case Name: State of Ohio v. Shannon Harkins 

Case No.: Clark App. No. 2012 CA 2 

Panel: Donovan, Hall, Vukovich 

Author: Mary E. Donovan 

Summary: Trial court did not abuse its discretion when it overruled appellant’s 

motion to withdraw his guilty pleas. At the hearing on the motion to 

withdraw, appellant’s counsel waived the opportunity to present 

evidence, including appellant’s testimony regarding his reasons for 

wanting to withdraw his plea. The State concedes that the trial court 

erred when it sentenced appellant to an additional sentence over and 

above what he should have received for a violation of his post-release 

control. Judgment affirmed in part and reversed in part for limited 

purpose of correcting sentencing entry for violation of post-release 

control. 

Case Name: State of Ohio v. Jamarr Stone 

Case No.: Clark App. No. 2011 CA 96 



Summary: The trial court did not err in dismissing Stone’s successive petition for 

postconviction relief since he failed to show that he was unavoidably 

prevented from the discovery of the facts upon which he relied for 

relief, and since he did not identify a new and retroactive federal or 

state right, recognized by the United States Supreme Court, upon 

which his claim is based. Judgment affirmed.

Case Name: State of Ohio v. Samuel J. Atkins 

Case No.: Miami App. No. 2011 CA 28 



Summary: Trial court erred when it found that the police who were involved in the 

high speed chase and eventual capture of appellant were “victims” for 

the purpose of finding him ineligible for ILC pursuant to R.C. 

2951.041(B)(7). Nevertheless, the error is harmless since the trial 

court, in the exercise of its discretion, found that ILC would demean 

the seriousness of the offense pursuant to R.C. 2951.041(B)(6) as 

this was a multi-county chase with speeds in excess of 100 m.p.h. 

Judgment affirmed. 

Case Name: State of Ohio v. Deirdre Nichols 

Case No.: Montgomery App. No. 25056 

Panel: Grady, Fain, Donovan 


Summary: Record reveals no arguably meritorious issues for appellate review. 

[Anders brief]. Judgment affirmed. 

Case Name: State of Ohio v. Michael A. Nabors 

Case No.: Montgomery App. No. 24582 



Summary: The trial court did not err in overruling Appellant’s motion to suppress, 

since the State established that Appellant’s consent to provide a 

saliva sample for DNA testing was freely and voluntarily given. 

Appellant was not in custody when interviewed, the investigating 

officer was not required to administer Miranda warnings, and 

ineffective assistance of counsel is not demonstrated where defense 

counsel withdrew the branch of the motion to suppress directed to 

Appellant’s statements, if any. Judgment affirmed. 

Case Name: State of Ohio v. Christopher D. Henry 

Case No: Montgomery App. No. 25007 


Author: Mike Fain 

Summary: Placing a GPS tracking device on the underneath of a car to track a 

suspect’s movements, without a warrant, violates the Fourth 

Amendment, and evidence obtained as a result is subject to 

exclusion. United States v. Jones, 565 U.S. ____, 132 S.Ct. 945, 181 

L.Ed.2d 911 (2012), followed. 

The State relied upon Davis v. United States, ____ U.S. ____, 131 

S.Ct. 2419, 180 L.Ed.2d 285 (2011), for proposition that police 

officer’s placing GPS tracking device was in objectively reasonable 

reliance upon non-binding judicial authorities, thereby triggering goodfaith 

exception to exclusionary rule. This reliance is misplaced, in 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Court of Appeals Case Summary, October 12, 2012 Page 2

view of express exception from the scope of the holding in Davis of 

warrantless searches in jurisdictions in which the question of the 

lawfulness of the search remains open. 131 S.Ct. 2433. Reversed 

and Remanded. 

Case Name: Barbara J. Pearl v. Benny J. Pearl 

Case No.: Champaign Co. App. No. 2012-CA-6 


Author: Thomas J. Grady 

Summary: A variance between a division and distribution of a pension retirement 

benefit in the separation agreement incorporated into a decree of 

dissolution and a QDRO implementing the decree is error which is 

voidable for a violation of R.C. 3105.171(I) and subject to review on 

appeal; our holding in Bagley v. Bagley, 181 Ohio App.3d 141, 2009- 

Ohio-688, 908 N.E.2d 469, that the error instead renders the QDRO 

void is overruled; because the QDRO the court ordered is a final order 

that was not appealed, the domestic relations court erred when it 

modified the QDRO to provide for a new and different division and 

distribution of pension retirement benefits the court found would better 

implement the terms of the decree of dissolution. Reversed and 

remanded. 

Case Name: State of Ohio v. Demetrius Davis 

Case No.: Montgomery Co. App. No. 24927 

Panel: Grady, Donovan, Hall 


Summary: Anders brief; Affirmed. 

Case Name: John Gaitawe, et al. v. Lakiesha Mays 




Summary: After finding that the landlord had acted illegally to recover possession 

of the premises, and awarding money damages to the tenant for her 

losses, the trial court erred when it denied the tenant’s request for an 

award of attorney fees pursuant to R.C. 5321.15(C); because attorney 

fees are awarded as costs instead of damages, tenant was not 

required to offer evidence of the reasonable amount of attorney fees 

to be awarded at trial, but could do so in a post-judgment proceeding 

on an award of attorney fees as costs. Reversed and remanded. 

Case Name: State of Ohio v. David E. Howard, Jr. 

Case No.: Greene Co. App. No. 2012-CA-10 



Summary: Because, on remand, the court was required to impose the statutorilymandated 

five year term of post-release control that the court 

imposed, the court’s failure to obtain Defendant’s waiver to his 


appearance by video and to inform the Defendant how he could 

communicate privately with counsel was harmless error. Affirmed. 

Case Name: State of Ohio v. James A. Winston 




Summary: Trial court erred in finding that Defendant lacked standing to 

challenge a warrantless search of an apartment because no evidence 

was adduced showing that Defendant, who was not the tenant, was 

an overnight guest, when uncontradicted evidence was introduced 

that Defendant had stayed in the apartment one and perhaps two 

nights prior to the search; in view of that evidence, trial court erred 

when it held that Defendant lacked standing to challenge the search 

and seizure. Reversed and remanded. 

Case Name: State of Ohio v. Terry R. Wilson 

Case No.: Montgomery County App. No. 24978 

Panel: Grady, Froelich, Hall 


Summary: Court’s statement that it considered the purposes and principles of 

sentencing in R.C. 2929.11 demonstrates that the court imposed the 

minimum sentence that the court determined will accomplish those 

purposes and principles without imposing unnecessary burden on 

state resources, which R.C. 2929.11(A) mandates; trial court was not 

required to identify the particular facts on which it relied when making 

the findings required by R.C. 2929.14(C)(4) to impose consecutive 

sentences. Affirmed. (Froelich, J., concurring); (Hall, J., concurring). 

Case Name: State of Ohio v. James F. Rogers 


Panel: Grady, Fain, Froelich 


Summary: Continued detention of Defendant, who was a passenger in a vehicle 

that had been stopped for a traffic violation, after the purposes of the 

stop had been completed, was illegal, tainting Defendant’s consent to 

search his apartment that officers requested; court did not abuse its 

discretion in imposing as a community control sanction that Defendant 

comply with a child support obligation arising from a conviction for 

non-support of dependents, and that he abstain from using alcohol, 

which his PSI indicates Defendant abuses. Reversed and remanded. 

(Froelich, J., concurring). 

Case Name: In the Matter of the Estate of Maxine Stevens 

Case No.: Champaign App. No. 2012 CA 1 

Panel: Grady, Donovan, Froelich 

Author: Jeffrey E. Froelich 

Summary: The trial court erred in concluding that granddaughter’s filings 

questioning the timing and method of another beneficiary’s exercise 


of his option to purchase property, as permitted in grandmother’s Will, 

and questioning his authority, as executor, to make such a transfer, 

violated the in terrorem clause in the Will. Judgment reversed.

THE COURT OF APPEALS OF OHIO SECOND APPELLATE ...

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