Judicial Opinions-Criminal

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The Judges of the Clermont County Common Pleas Court will from time to time post in PDF format decisions that have value as precedent or are of interest to the general public. These postings will generally occur at the time the decision is rendered, and before there is any review on appeal of these decisions. Counsel and parties are responsible for researching any later rulings of the Twelfth District Court of Appeals and/or the Ohio Supreme Court that may affect the legal value of these opinions.

CRIMINAL ISSUES

Procedure

Bindover

Judge McBride-Decision on motion to dismiss, delay in bindover, Sup. R. 39(B)(2) construed, no substantive right created for defendant by Rule of Superintendence (September 12, 2012)

Speedy Trial

Judge McBride-Decision on motion to dismiss, speedy trial, Interstate Agreement on Detainers (IAD). ORC 2963.30 construed, triggering events, calculation of 180 day limit, out of state incarceration (March 21, 2013)

Judge McBride-Decision on speedy trial motion, ORC 2945.71 applied, out of state incarceration, extradition, other Ohio counties, warrants, parole violation, factors to be applied (September 26, 2014)

Motions in Limine

Judge McBride-Decision on two motions in limine, evidence of “other acts”, ORC 2907.05 and 2945.59 construed, Evid. Rule 404 construed, facts and circumstances test, State vs. Williams applied, Ohio Rape Shield Law objectives (November 30, 2015)

Judge McBride-Decision on motions in limine, evidence of other acts, absence of accident or mistake, ORC 2907.05 and 2945.59 construed, Evid. R. 404, gross sexual imposition, cases remote in time, unfair prejudice (February 27, 2017)

Experts

Judge McBride-Decision in criminal case on motion in limine regarding expert testimony on fingerprint indentification Daubert test (January 31, 2011)

Consolidation/Severance

Judge McBride-Decision in criminal cases, motion to consolidate, one defendant with offenses of similiar character (April 17, 2012)

Judge McBride-Decision on motions to consolidate or sever trials of co-defendants, Crim. R. 8, 13, and 14 construed, antagonistic defenses, statements of co-defendants, prejudice to fair trials (December 15, 2015)

Judge McBride-Decision on motion to consolidate, similar offenses, Crim. Rules 8(A) and 14 construed, other acts and joinder tests, ORC 2945.59 construed, “scheme, plan or system” evidence, Evid. R. 404 construed (August 22, 2016)

Judge McBride-Decision on motion to sever charges, counts involving alleged crimes four months apart, Crim. R. 8(A) and 14 construed, evidence of other acts, Evid. R. 404, ability of jury to separately consider evidence, absence of prejudice (April 24, 2017)

Search and Seizure, Interrogation

Judge McBride-Decision on motion to supress, Fourth Amendment, controlled drug buy, traffic stop, reasonable and articulable suspicion, totality of circumstances, (October 29, 2012)

Judge McBride-Decision on motion to supress, facts and circumstances, hearsay in affidavit, information from informants, plain view, curtilage, voluntary consent of property owner, fruit of the poisonous tree, (November 7, 2013)

Judge McBride-Decision on motion to supress, photographic line up, procedures for, ORC 2933.83 construed, facts and circumstances, “unduly suggestive”, reliability, administration of line up, use of folders (February 4, 2014)

Judge McBride-Decision on motion to supress, search warrant, daytime distinguished from nighttime, ORC 2933.24, Crim.R. 41(C), time of execution of warrant, time of sunset irrelevant (May 13, 2014)

Judge McBride-Decision on motion to supress, computer hard drive, probable cause, warrant, single warrant needed for computer and hard drive, child pornography images, off-site forensic examination of hard drive (January 13, 2015)

Judge McBride-Decision on motion to suppress, custodial interrogation, Miranda warning, defendant initiates conversation with detective, interview in jail, Fourth Amendment, search of clothing and keys, expectation of privacy (June 30, 2015)

Judge McBride-Decision on motion to suppress, custodial interrogation, Miranda warning, request for counsel, credibility determination between detective and suspect, effect of heroin withdrawal (February 12, 2016)

Judge McBride-Decision on motion to suppress, Fourth Amendment, residential search, warrant, reasonableness, scope of search, plain view exception, items not listed in the warrant (April 21, 2016)

Judge McBride-Decision on motion to suppress, traffic stop, smell of marijuana, probable cause, search of vehicle, search incident, automobile exception to warrant requirement, custodial interrogation, Miranda warning (June 1, 2016)

Judge McBride-Decision on motion to suppress, probable cause, shoplifting, reliance on store loss prevention specialist as reliable informant, search incident to arrest, search of backpack, scope of search (June 1, 2016)

Judge McBride-Decision on motion to suppress, search and seizure, traffic stop, probable cause, canine sniff inspection, scope of search, unreasonable delay (August 17, 2016)

Judge McBride-Decision on motion to suppress, search and seizure, police observation at gas station, consensual encounter, observation of drug related item, canine sniff of vehicle exterior, reasonable delay to get canine unit on scene (February 9, 2017)

Judge McBride-Decision on motion to suppress, search and seizure, traffic stop, probable cause, drug dog sniff test, reliability, interrogation, driver in custody during traffic stop, duration of vehicle inspection (October 25, 2016)

Judge McBride-Decision on motion to suppress, search and seizure, sufficiency of affidavit for warrant, Crim. R. 41(C) and ORC 2933.24 construed, veteran officer observing drug related activity, nexus between person and motel room (May 1, 2017)

Offenses

Judge McBride-Decision in criminal case after bench trial, definitions-felonious assault, deadly weapon, intent, operable weapon,interference with custody. Application of proof beyond reasonable doubt (July 6, 2012)

Judge McBride-Decision in criminal case after bench trial, ORC 4511.19(A)(1)(a) OMVI, influence of a drug of abuse, absence of proof of alcohol use, proof of drug usage, burden of proof, no chemical test, lack of evidence, driving under suspension (August 24, 2012)

Judge McBride-Decision in criminal case after bench trial, ORC 4511.19(A)(1)(a), OMVI, prescription medications, drug of abuse, lack of physical imparement, burden of proof, explanations for troopers’ observations, defendant’s physical conditions (September 12, 2012)

Judge McBride-Decision on motion to dismiss, sex offender, failure to register, effect of statute being unconstitutional, ORC 2950.05(F)(1) and 2950.99 construed, State vs. Bodyke applied. (October 29, 2012)

Judge McBride-Decision after jury waived trial, gross sexual imposition, ORC 2907.05(A)(4) interpreted, “erogenous zone” defined (November 4, 2012)

Judge McBride-Decision after jury waived trial, ORC 2913.02(A)(1), theft of drugs, evidence, credibility, beyond reasonable doubt, facts and circumstances (November 20, 2013)

Judge McBride-Decision after bench trial, child endangering, felonious assault, child abuse, corporal punishment, excessive when (January 21, 2014)

Judge McBride-Decision on merger of offenses, ORC 2941.25, drug offenses, separate animus, same conduct, allied offenses, (May 14, 2014)

Judge McBride-Decision on merger of offenses, ORC 2941.25, criminal non-support, allied offenses of similar import, multiple victims as showing different import, different time periods, (April 13, 2015)

Judge McBride-Decision following jury waived trial, gross sexual imposition, ORC 2907.05(A)(1) construed, definitions-sexual contact, sexual gratification, erogenous zone; facts and circumstances test, proof beyond reasonable doubt, use of force (March 9, 2015)

Judge McBride-Decision following jury waived trial, receiving stolen property, misuse of a credit card, elements, knowingly, facts and circumstances, proof beyond reasonable doubt, determining intent from actions with credit card (September 14, 2015)

Judge McBride-Decision after jury waived trial, child endangerment, ORC 2919.22(A), elements, misdemeanor or felony, serious physical harm, malnutrition, failure to thrive, factors to consider in determining level of offense (May 2, 2016)

Motion for New Trial

Judge McBride-Decision in criminal case, motion for new trial, alleged juror misconduct, You Tube video, Evid. R. 606(B), scope of aliunde rule (June 15, 2012)

Judge McBride-Decision on motion for a new trial, Crim. R. 33 construed, newly discovered evidence, Brady violation, material evidence, different result at trial, expert opinion on point of origin of fire (December 30, 2013)

Post Conviction Relief/Post-trial Issues

Judge McBride-Decision on petition for post conviction relief, timeliness for jurisdiction (December 1, 2011)

Judge McBride-Decision on petition for post-conviction relief, federal and state, habeas, filing deadlines (January 23, 2012)

Judge McBride-Decision on motion for relief from judgment, Civ.R. 60(B) not applicable to criminal proceedings, res judicata, merger of offenses (October 29, 2012)

Judge McBride-Decision on motion for transcript at state expense, defendant entitled to transcript, when. One copy, post-conviction relief (October 29, 2012)

Judge McBride-Decision on motion to seal record, ORC 2953.31 and .32 construed, number of offenses, counting misdemeanors and felonies (February 15, 2013)

Judge McBride-Decision on motion to seal record, crime of violence defined, ORC 2953.31-.36 construed, ORC 2901.01 construed, review of record, attempted felonious assault (July 5, 2013)

Judge McBride-Decision on motion to vacate judgment, ORC 2953.21 construed, juror misconduct, aliunde rule, YouTube video, ineffective assistance of counsel (July 12, 2013)

Judge McBride-Decision on motion for post-conviction relief, ORC 2953.23, due process, constitutionality of post-conviction relief statute, mental illness, mental retardation, effective assistance of counsel, effective assistance of experts, res judicata, Brady exculpatory evidence, prosecutorial misconduct (November 14, 2013)

Judge McBride-Decision on motion to modify community control sanctions, restitution, monetary judgment for victim, dollar amount fixed, ORC 2929.15 and .18 construed, changes in non-monetary terms, continuing jurisdiction (December 30, 2013)

Judge McBride-Decision on motion for post-conviction relief, actual innocence, ORC 2953.21 and .23, second petition, timing, photographic evidence, DNA testing (September 19, 2014)

Judge McBride-Decision on motion for post-conviction relief, ORC 2953.21, ineffective assistance of counsel, speedy trial, factors to be considered, Defendant out of state, attorney’s decision not to file pre-trial motion, client input on decision not to file motion (March 3, 2015)

Judge McBride-Decision on motion for post-conviction relief, ORC 2953.21 and .23 construed, time for filing, lack of jurisdiction, only statutory right to appointed counsel, merger of offenses, res judicata by appellate decision, no withdrawl of guilty plea (March 17, 2015)

Judge McBride-Decision on motion to seal record, expungement, ORC 2953.31 and .32 construed, number of felonies and misdemeanors, counting felony in case under consideration (June 10, 2015)

Judge McBride-Decision on motion for post-conviction relief, ORC 2953.21 construed, substance of motion rather than label, res judicata as to prior motions, issues that could have been raised on appeal, notice of court costs and post-release control (December 28, 2015)

Judge McBride-Decision on motion to withdraw guilty plea, Crim. R. 32.1 construed, ineffective assistance of counsel, duty to investigate, value of stolen property, price tags, ORC 2913.02 and 2913.61 construed, manifest injustice (February 21, 2014)

Judge McBride-Decision on petition for post-conviction relief, ORC 2953.21 and .23 construed, time of filing petition, absence of newly discovered evidence, res judicata effect of prior decisions, ineffective assistance of counsel (May 11, 2017)

-Fines and Costs

Judge McBride-Decision on post-conviction motion, court costs, criminal fines, conversion of community service to fines and costs, ORC 2947.23(A) construed (December 29, 2014)

Judge McBride-Decision on motion to waive court costs, ORC 2947.23 construed, facts and circumstances, indigent defendant, child support (March 16, 2015)

Sentencing and Offenses

Judge McBride-Decision on merger of allied offenses for sentencing purposes (November 9, 2011)

Judge McBride-Decision on merger of offenses, allied offenses of similar import, ORC 2941.25, sentencing, burglary, attempted rape, kidnapping (October 9, 2012)

Judge McBride-Decision on resentencing, ORC 2929.14(A)(3)(B), retroactivity of HB 86, effect on judicial release of change in statutory penalties (November 5, 2012)

Judge McBride-Decision on merger after guilty plea, ORC 2941.25, allied offenses, possession of criminal tools and forgery, fake gift cards (December 17, 2012)

Judge McBride-Decision on merger after guilty plea, ORC 2941.25, allied offenses, possession of criminal tools, forgery, ORC 2913.05(A) telecommunications fraud, fake gift cards (December 20, 2012)

Judge McBride-Decision on merger after jury waived trial, allied offenses of similar import, felonious assault, child endangering, two part test, ORC 2941.25 construed (February 14, 2014)

Judge McBride-Decision on merger after guilty plea, multiple offenses, alteration of VIN numbers, ORC 2941.25 construed, same conduct, separate animus, (April 14, 2014)

Judge McBride-Decision on motion for independent living, not guilty by reason of insanity, mental illness, ORC 2945.401, least restrictive alternative, conditions (May 24, 2013)

Judge McBride-Decision on classification as sexual predator, former ORC 2950.09(B)(3) construed, Megan’s Law, factors to be considered, clear and convincing evidence, nature of offenses, (June 14, 2013)

Judge McBride-Decision on motion for jail time credit and appointment of counsel, correcting jail time credit, ORC 2967.191 and ORC 2929.19 construed, delayed appeal, res judicata, waiver of issue if no appeal (June 20, 2013)

Judge McBride-Decision on motion for post conviction relief, ORC 2953.21, standards for ineffective assistance of counsel, trial strategy, impeachment of witness (November 27, 2013)

Judge McBride-Decision on amount of restitution-ORC 2929.18(A) and 2929.01 construed, definition of “economic loss” and “victim”, supported by credible evidence, Evid. R 101 (August 15, 2014)

Judge McBride-Decision on classification as sexually oriented offender, Megan’s Law, Adam Walsh Act, ORC 2950.09 construed, effect of prior case and res judicata, risk factors, clear and convincing evidence standard, expert testimony (April 20, 2015)

Judge McBride-Decision on motion regarding possible sentence, ORC 2915.041(C) and 2945.75 construed, prior convictions, no allegation in indictment, enhance penalty or change degree of crime, element of crime, requirement for jury fact finding, Apprendi vs. New Jersey applied, (October 6, 2015)

Judge McBride-Decision on motion for new trial, change in Ohio case law, sentencing for multiple OVI offenses, repeat offender statute, ORC 4511.19 and 2929.14(A)(3) compared, effective assistance of counsel when law later changes, Crim. R. 33(A) and 11 compared, conversion to petition for post conviction relief (April 25, 2016)

-Community Control

Judge McBride-Decision on violation of community control, relaxed rules of evidence, hearsay, proof beyond reasonable doubt not required, (June 12, 2014)