The "verbal" domestic violence case

Many times those arrested and/or accused of domestic violence claim they are not guilty simply because they only made what they believed were veiled threats of harm.  For example, the husband who says "I'm going to kill" you in a fit of rage, or the live-in girlfriend states "I will cut your throat" during an argument, can be found to have violated  one subsection of the Ohio domestic violence statute  (other subsections talk about actual physical injury to the victim) which states: "No person, by threat of force, shall knowingly cause a family or household member to believe that the offender will cause imminent physical harm to the family or household member."  Sometimes, as in a recent Cuyahoga County Court of Appeals case, even text messages and standing outside of an apartment can be sufficient evidence of a domestic violence violation. Advice:  Count to 10 before saying anything out of anger to your significant other.  Even if you don't really intend on doing anything physical, the cops can still be called.

What is a criminal "bad check?"

An Ohio Court of Appeals recently held that a client who had written a $1,000.00 bad check to their lawyer was in fact guilty of felony writing bad checks - in violation of Ohio Revised Code 2913.11(B) .   In State v. Napper, the Court held that Napper's conviction for writing bad checks was proper despite a protest by Napper that a civil collection case had been prosecuted criminally.   What the Court noted in sustaining the felony conviction was that there was proof that at the time Napper wrote the check he knew it would bounce.   Further, Napper was given a number of opportunities to make the check good and never did. Police officers in bad check cases often call the check writer and give them a clear deadline to make the check good.  So even if you bounce a check, and even if the payee of that check files a police report, most police officers will refrain from any charges as long as you make the check good ASAP.

Advice:  Of all the people you could find, don't write your lawyer a bad check.

Every person's home is their castle - and the castle must be built in a "workmanlike manner."

The Ohio Supreme Court just issued a new decision which held that despite what the home purchase/construction contract may purport to say, every person's home is their castle - and the castle must be built in a "workmanlike manner."   In Jones v. Centex Homes, Inc. the Court made the following pronouncement: "[T]he duty to construct a house in a workmanlike manner using ordinary care is the baseline standard that Ohio home buyers can expect builders to meet. The duty does not require builders to be perfect, but it does establish a standard of care below which builders may not fall without being subject to liability, even if a contract with the home buyer purports to relieve the builder of that duty. Accordingly, we conclude that a home builder’s duty to construct a house in a workmanlike manner using ordinary care is a duty imposed by law, and a home buyer’s right to enforce that duty cannot be waived."

So if you are having a  home built, pay close attention to the contract - bu also know that the contract does not relieve the home builder from their legal duty to build the home in a "workmanlike manner."

Tinted windows and the smell of pot

A Court of Appeals in Dayton, Ohio recently issued an opinion which essentially found that if you get pulled over for tinted windows (and you can get pulled over for just that), and the police officer claims to smell burnt marijuana, that officer can then conduct a "pat down" of your person for weapons and also conduct a quick search of the car compartment for drugs.  Further, if the officers finds that you have even a small amount of marijuana on your person, that officer can then search your person further for any other drugs.   In this case, that further search located some crack cocaine.   The Court of Appeals found that the pulling over of the car and the search for drugs in the car and on the defendant's person was permissible. Suggestion:   Get rid of the tinted windows.   With some police officers, you are just begging to get pulled over and searched.

Extra prison time for being in a "gang."

The Cuyahoga County Court of Appeals recently issued a decision about what is known as a "criminal gang specification" - an addition to almost any indictment which, if proven at trial, requires, pursuant to RC 2929.14(G),  a defendant to receive extra time in prison (the court has a choice of 1, 2 or 3 years - which has to be served before any other portion of the prison sentence).  The definition of a criminal gang is: "as a formal or informal group of three or more persons to which all of the following apply: (1) one of the group’s primary purposes is the commission of one or more offenses designated in the section, which includes, among others, a felony, an offense of violence, and trafficking in marijuana; (2) the group has “a common name or one or more common, identifying signs, symbols, or colors”; and (3) the persons in the group “individually or collectively engage in or have engaged in a pattern of criminal activity.” R.C. 2923.41(A)(1)-(3)."

So, if you are running with a bunch of fellas who like to commit crimes, you need to know that the mere affiliation with the gang can get you extra time in prison.    Sounds simple, but don't name your group or use symbols and colors - whatever you do.

"Marital Property" and "Separate Property" under Ohio divorce law

A recent Ohio Court of Appeals opinion discussed the definition of, and difference between, "marital property" and "separate property."    These can be important definitions when the parties have been married for a long time and have worked on or bettered property each may have owned prior to the marriage.   Generally speaking, under Ohio law, the property you bring into the marriage (called "separate property") does not become "marital property" (property owned by both the husband and the wife) just because of the marriage.   If that separate property is segregated and remains largely unchanged during the marriage, it remains separate property.   If either or both of the parties work on or assist in the increase in value of separate property during the marriage, then that "appreciation" in value (but not the pre-marital portion) is going to be considered marital property.   Separate property can also lose its status as separate property (called "transmutation")  if it is "commingled" with marital property and the commingled part cannot be "traced" back to its separate property roots. Since there is no marriage class that people go to before marriage, many of our clients are stunned to find out that a portion of, or even all of, their separate property is now, because of how that property was treated during the marriage, allegedly marital property.

Slip and Fall Personal Injury Cases

We often get calls from folks who fell while walking on someone's property - and they often assume that the property owner is liable to them for the injuries they suffered from that fall. However, when applying Ohio law to the facts of many of these cases, the property owner has no liability.   Under Ohio law, in order for a property owner to have any liability to someone who is injured on that property, the injured party must prove EITHER: (1) the owner of the property knew of the dangerous condition before the injury, and that owner failed to remedy, or improperly remedied, that dangerous condition, or (2) the property owner actually "created" the dangerous condition. Further, there is a good body of law that states that naturally accumulating ice or snow does not require the owner of the property to clear that accumulation - and if you slip and fall on that naturally accumulation snow and ice, the property owner has no liability to you. Further still, if you trip and fall on a sidewalk where the "crack" is 4 inches or less, then the property owner has no liability to you. Nevertheless, many times the property owner does, for the reasons stated above, have liability to a person injured on that property. We have successfully obtained reasonable compensation for people in those situations, so feel free to contact us to see if you have a valid claim.

And, like your mother said, watch where you are going.

The only bald-headed guy in the police line-up - that ain't fair

In a recent court of appeals case, the Court held that if you are going to conduct a police line-up, and the target defendant is bald, better make sure that you have other bald-headed guys in the line-up.  The Court stated that in order for a defendant to suppress a police line-up procedure (i.e. bar the jury from hearing that the defendant was ID'ed out of a line-up), the defendant must show the identification procedure was “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification” and that the identification itself was unreliable under the totality ofthe circumstances.  Given the fact that the witness did not pick out the defendant in the first line-up, and given the fact that the defendant was the only true bald guy in the second line-up, the Court found the whole process unduly suggestive and tainted.

If you are in a live line-up, take a look down the line to see the hairstyles of all of the other guys.

A reduction from a serious set of felonies to a $250 fine - what a day

We recently had a client who was charged with a set of serious felonies all stemming from a very bad night.   The defendant (who is not gay)  caught his girlfriend in a car with a gay woman who he believed was "hitting" on his girlfriend.  He got upset and opened the car door and tried to get the love of his life out of the car - and ended up only grabbing her purse away form her.   A fight and short car chase ensued, and our client was arrested by the Cleveland Police and charged with Felonious Assault, Kidnapping and Robbery.  Our client has a very good and long standing job, is in his 50's, and a conviction for this type of stuff would have lost him his job. Well, after some months of pretrial haggling and discussion, his serious felony charges were reduced to a misdemeanor, and he was fined $250.00 and sent home.   What a day for him.

Some days are better than others.

Spousal Support and Your Retirement Assets

In a recent case issued out the Cuyahoga County Court of Appeals, the Court discussed the differences between the retirement assets of the parties and the "income" that is generated from those retirement assets.   For example, there is a difference between a 401K account that has a $100,000.00 balance in it and the $3,000.00 per year amount that is generated from the investment income on that account.   While a Court cannot use the $100,000 as "income" for support purposes, it can use the $3,000.00. In this Court of Appeals case (which also involved other spousal support issues), the ex-husband argued, among other things, that since his retirement assets were awarded to him in his divorce years earlier, the Court could not use the "income" currently being generated from that retirement account for calculating a modification or termination of his spousal support (the ex-husband had filed a motion to modify his spousal support).   The Court held that while it cannot utilize the balance in the account as "income," it could use the monthly payments being sent to the ex-husband as "income" for spousal support purposes.

Something to remember when considering how you divide up retirement assets and setting support in a divorce decree.

Comparing Sentences Can be Very Important

The Cuyahoga County Court of Appeals has issued a recent opinion where the 50-year-plus sentence of a defendant was reversed because, as the Court held, the sentence was "disproportionate" to the sentences received by other defendants for essentially the same stuff.  This type of ruling is rare - because courts of appeal rarely reverse sentences set by trial judges.   However, in this case, the Court compared the sentence issued by the trial court to other sentences issued by other trial courts for similar crimes.   What was perhaps different here was that the defendant's lawyer was able to locate and point to other cases - and  this took time.   We did this recently for a client of ours accused of a serious crime (where the possible sentence was the main focus of the whole case), and we convinced the trial court NOT to impose a bigger sentence.  This type of analysis takes time - but can be more than worth it for the client.

What do You Need for a New Trial?

An Ohio Court of Appeals recently set forth the law in Ohio that applies to when a defendant asks for a new criminal trial based upon newly discovered evidence.  In State v. Brown, the Court held:

To prevail on a motion for new trial based upon newly discovered evidence, Defendant must show that the new evidence: (1) discloses a strong probability that the result of the trial would be different if a new trial were granted; (2) has been discovered since the trial; (3) is such as could not have been discovered before the trial through the exercise of due diligence; (4) is material to the issues; (5) is not merely cumulative to former evidence; and (6) does not merely impeach or contradict the former evidence.

In Brown, the Court of Appeals held that the trial court was wrong to have refused a new trial for Brown when Brown's lawyers discovered (after the trial) that the bullet in question did not match the gun involved in the crime.  It is rare that a court gives a defendant the right to have a new trial.  But medical and forensic science is evolving on almost a yearly basis, and what was not available last year is available now.   We might expect to see more of these types of decisions in the years to come.

Can a spouse testify against another spouse in Ohio?

In a recent Ohio Court of Appeals case, the Court discussed an issue that we commonly use to see on TV and the movies - one spouse testifying against another spouse.  In the old mob movies, the mobster would just marry the female witness to the crime  - and thus she would not be permitted to testify against him.  Spouses, under Ohio law, are generally NOT permitted to testify against their respective spouses when that spouse is being prosecuted for a crime.   This is called the "spousal privilege."    The spousal privilege under Ohio law has one big exception.  If the testifying spouse is the victim of the crime (for example, a victim of domestic violence), they the spousal privilege does not apply. Our advice is simple - be nice to your spouses.

Our Public Records Victory at the Supreme Court of Ohio

We obtained a rather huge victory for all Ohio residents last week.   We won a Supreme Court of Ohio case which held that we were entitled to a large number of lead poisoning records from the Cuyahoga Metropolitan Housing Authority ("CMHA").   We had sought to learn as much as we could on how many children had been poisoned by lead paint at CMHA in the last 20 years.  CMHA violated Ohio law by refusing to produce ANY records concerning leading poisoning issues at CMHA.  The Cuyahoga County Court of Appeals ordered the records produced and awarded sanctions against CMHA.  CMHA appealed to the Ohio Supreme Court - and lost.   This is a victory for our firm but also a victory for all of the citizens of Ohio - because public records are owned by the citizens of the State of Ohio - not the public employee cronies who do not want the public to know how they have failed to protect children from lead poisoning at CMHA housing.     Stay tuned for more details to follow.  We expect more nonsense from CMHA - they don't want us to see what they have either done or not done.

Read "ALL" of the Contract.

Under Ohio law, there is a doctrine called the "parol evidence rule."  This rule has nothing to do with the "parole" that a prisoner gets when he/she is released from prison early.     The "parol evidence rule" dictates that if there is a written contract between two or more parties, any previous or subsequent "oral" statements or promises made by one of the parties that is different from what is contained in the written contract, are essentially unenforceable (unless there is "fraud" involved).   The Cuyahoga Court of Appeals recently reaffirmed this rule in the case of Falivene v. Bob Schmidt Homes, Inc..  In that case, home purchasers were stuck with the strict written provisions of the purchase agreement they signed - regardless of what they claimed they were told by the home building company.    The home buyers lost this appeal when the Court applied the "parol evidence rule."  They were not happy campers, and this lawsuit soured some friendships.  The advice here is simple and obvious, you have to read ALL provisions of ALL of the contacts you sign - and perhaps have a lawyer explain some of the less-than-clear provisions.  Call us if you have problems with an issue like this.

"Abandoned" Hard Drives and "Search Warrants"

On January 17, 2012, the Ohio Supreme Court held that if a defendant abandons a computer hard drive, the police do not need to obtain a search warrant to search that hard drive.  In State v. Gould, the Court noted that the defendant had left his computer hard drive with his mother for months, and had left the State.   In light of these circumstances, the Court held that the hard drive had been "abandoned," and that police do not need to obtain a search warrant to search abandoned property.   The hard drive contained a number of child pornography images.

GPS Tracking Needs Search Warrant

On an issue that we have been "tracking" for a number of months (see our previous posts on this blog), the Supreme Court of the United States today held that police officers need a warrant before they can attach a GPS tracking device to a drug dealer's car.   The GPS device was attached for 4 weeks.   This is a case where new technology required a new decision by the highest court in the land.   In United States v. Jones, the US Supreme Court, in a rare unanimous opinion, held that before a police department attaches a GPS device to a criminal defendant's car, the police must get a search warrant.  The Court had no choice but to overturn a drug dealer's drug trafficking conviction based upon the failure of a police department to get that warrant.  

Do not interfere with the police who are arresting someone - you could get charged with "Obstruction of Justice"

The Cuyahoga County Court of Appeals recently affirmed the conviction of a woman who interfered with the arrest of her daughter.    In State v. Whitby, the Court held that a mother's act of fending off a police officer's act of arresting of her daughter (by pushing and blocking the arrest attempts) was a violation of Ohio Revise Code 2921.32.  Our advice, unless the police are deliberately injuring someone, once they begin the arrest process, don't interfere - wait for the lawyers to do their work once they get to the courtroom.

Cognovit Notes in a "consumer transaction" are illegal

The Cuyahoga County Court of Appeals recently reaffirmed that using a "cognovit note" (i.e. a promissory note that essentially gives the lender the right to get an automatic judgment without a trial) is illegal when the deal involved a "consumer transaction." A consumer transaction includes the sale of a residential home. See Agarwal v. Matthews. Be careful what type of promissory note you might be signing. A cognovit note forfeits many of the rights you would have under a regular promissory note.

New Years Eve Post

Happy New Year. Drive safely and wisely – especially over the next 48 hours. We will be open 24/7 for the next 48 hours, so call us at 800-529-1966 if you or someone you know makes a mistake or otherwise needs us. Print off the 800 phone number and keep it with you. The number: 800-529-1966

Michael J. O’Shea, Esq. Lipson O'Shea Legal Group Beachcliff Market Square 19300 Detroit Road – Suite 202 Rocky River, Ohio 44116 (440) 356-2700 – office (216) 470-8098 – cell (440) 331-5401 – fax myclevelandlawyer@gmail.com www.lipsonoshea.com