Court News Ohio
Court News Ohio
Court News Ohio

Tuesday, June 12, 2018

State of Ohio v. James R. Goff, Case no. 2017-0021
Twelfth District Court of Appeals (Clinton County)

Ohio Northern University v. Charles Construction Services v. KCL Framing LLC, et al., Case no. 2017-0514
Third District Court of Appeals (Hancock County)

State of Ohio v. Edwin A. Vega, Case no. 2017-0618
Eighth District Court of Appeals (Cuyahoga County)

Was Resentencing Hearing Conducted Properly for Man on Death Row for 1994 Wilmington Murder?

State of Ohio v. James R. Goff, Case no. 2017-0021
Twelfth District Court of Appeals (Clinton County)


  • Was the appellant denied the right to a fair trial when the trial court refused to empanel a new jury for a new sentencing proceeding?
  • Did the trial court improperly exclude additional mitigating evidence?
  • Did the trial lawyers provide ineffective assistance by failing to adequately prepare their client for his unsworn statement and by failing to submit additional mitigating evidence from their client’s institutional file?
  • Were the appellant’s constitutional rights violated when the death sentence was imposed, in part, based on information he had no opportunity to deny or explain?

James R. Goff was indicted for the 1994 murder of 88-year-old Myrtle Rutledge in Wilmington. A home furnishings store employed Goff to make furniture deliveries. After making a delivery to Rutledge’s home, Goff returned and fatally beat and stabbed her.

A jury convicted Goff of aggravated murder, aggravated burglary, aggravated robbery, and grand theft and recommended the death penalty. In August 1995, the trial court accepted the recommendation and sentenced Goff to death. The Twelfth District Court of Appeals and the Ohio Supreme Court upheld his convictions and sentence.

Federal Court Upholds One Claim
Following multiple appeals and motions, Goff asked the Sixth U.S. Circuit Court of Appeals to review 17 claims. In April 2010, the Sixth Circuit determined that Goff’s legal representation at the state appellate level, in the Twelfth District Court of Appeals, was ineffective because the lawyer didn’t raise an issue about Goff not making an unsworn statement, or allocution, at trial. The Sixth Circuit stated it would grant Goff’s request for a writ of habeas corpus unless Ohio courts reopened Goff’s direct appeal in the Twelfth District within 120 days to allow his counsel to raise the allocution issue.

The Twelfth District reopened the appeal, ruled that the trial court failed to provide Goff his right to make a statement, and returned the case to the trial court for resentencing.

Resentencing Hearing Held
At the resentencing hearing in June 2015, the trial court refused to allow a psychologist to testify on Goff’s behalf but allowed discussion of the psychologist’s report. The court then offered Goff his right to allocution, and he made a brief statement.

In its ruling, the trial court stated it considered all the prior trial transcripts as well as mitigating factors presented at the original trial and the resentencing hearing, including Goff’s allocution. Deciding that the aggravating circumstances outweighed the mitigating factors beyond a reasonable doubt, the court reimposed the death penalty and sentenced him again on the other counts.

Goff appealed to the Twelfth District, which rejected his arguments and upheld the trial court’s judgment and sentence. Goff filed an appeal with the Ohio Supreme Court, which is required to review his claims.

Empaneling New Jury
Goff contends that the psychologist’s report and his allocution were new mitigating evidence that had to be heard by a new jury. Citing the U.S. Supreme Court’s 2016 decision in Hurst v. Florida, which overturned Florida’s death penalty sentencing structure, Goff argues that a jury, not the judge, has to find each fact necessary to support a sentence of death. Before Hurst was decided, the trial court rejected Goff’s argument and ruled that a new jury would serve no purpose and that the resentencing hearing would start from the point of Goff’s allocution. Goff maintains that his death sentence was improperly reimposed by the trial court, which did independent fact-finding in violation of Hurst. He asks the Ohio Supreme Court for a new penalty phase hearing with a new jury that would consider the mitigating evidence.

The Clinton County Prosecutor's Office counters that the error in Goff’s case – no allocution – was made in the trial’s sentencing phase, which takes place after the jury has deliberated and announced a verdict. The prosecutor points to the Ohio Supreme Court’s 2006 ruling in State v. Roberts. In Roberts, the Court remanded the case to the trial court to impose a sentence permitted by law once it allowed Donna Roberts to make a statement in allocution. The trial court gave Roberts the opportunity to make a statement and again sentenced her to death. The trial court handling Goff’s resentencing took the same steps, which were all that was required, the prosecutor maintains.

Additional Mitigating Factors
Goff argues that he should have been permitted to present any and all relevant mitigating evidence at the resentencing hearing – including testimony from the psychologist, instead of only the report, and information about Goff’s good behavior in prison while on death row.

In Roberts, the prosecutor notes, the defendant asked to introduce new evidence during resentencing proceedings to try to lessen her responsibility for the offenses, and the court rejected the motion. In upholding the trial court decision, the Ohio Supreme Court ruled that a defendant doesn’t have the right to update his or her mitigation at resentencing. The prosecutor argues that Goff had a full, unlimited chance to offer mitigating evidence at his original trial, and the error requiring resentencing happened after the completion of the trial’s mitigation phase. Ohio law requires that when an error occurs at the sentencing phase but after the jury’s verdict and recommendation, any proceeding on remand starts from the point of the error, the prosecutor states.

Preparation for Allocution
Goff maintains that a defense attorney’s duty to look for mitigating factors is an essential part of the lawyer’s effective representation of a client. And, the purpose of allocution is to give the defendant an opportunity to personally appeal for his life, Goff notes. His brief states that his lawyers at the resentencing didn’t prepare him for his allocution, which was brief. Goff mentioned his lack of violence while locked up, a plea deal offered before his trial, and his difficult childhood, and asked for leniency. His counsel didn’t ask him questions to guide him, as permitted, and shirked their duty to ensure his presentation was coherent and persuasive, Goff contends.

The prosecutor responds that Goff offers no support for his claim that his lawyers didn’t represent him effectively.

“There is nothing in the records to suggest that trial counsel failed in their duty or work with Appellant to prepare his statement,” the prosecutor’s brief states. “Appellant cannot be rewarded for his choice not to offer a more detailed statement, or in this case any show of remorse or apology whatsoever; to do so would incentivize those convicted in future cases to purposely offer statements they believed would be found inadequate.”

Prison Behavior
Goff indicates that the prosecutor argued the resentencing trial court should discount his time in prison and his prison record. Goff states that his due process rights permit him to present evidence to rebut the prosecutor’s statements, and he was denied that chance. A defendant can’t be sentenced to death based on information that the defendant had no opportunity to deny or explain, Goff argues.

The prosecutor maintains that Goff’s conduct since the original trial is irrelevant in a resentencing hearing.

- Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing James R. Goff: Marshall Lachman, 937.743.9443

Representing the State of Ohio from the Clinton County Prosecutor’s Office: Andrew McCoy, 937.382.4559

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Does Commercial Insurance Policy Cover Defective Work by Subcontractors?

Ohio Northern University v. Charles Construction Services v. KCL Framing LLC, et al., Case no. 2017-0514
Third District Court of Appeals (Hancock County)

ISSUE: Does a “products-completed operations hazard” provision of a commercial general liability insurance policy cover claims of defective construction or workmanship by a subcontractor?

The parties in this lawsuit are asking the Supreme Court to determine if its 2012 decision in Westfield Ins. Co. v. Custom Agri Systems applies to this dispute regarding the faulty workmanship of subcontractors on a large-scale project. The case has drawn the interest of statewide organizations representing the insurance industry and construction contractors, which filed amicus curiae briefs supporting the opposing sides.

Defects Discovered in Hotel Construction
In 2008, Ohio Northern University (ONU) contracted with Charles Construction Services to construct a new luxury hotel and conference center on the campus called “The Inn.” As part of the terms of the contract, Charles Construction promised to perform all the work on The Inn by itself or through subcontractors for which it would be responsible for their work. The contract also required Charles Construction to maintain a commercial general liability insurance policy (CGL) that included a “completed operations” clause, which would cover any construction defects discovered after completion of the project.

Charles Construction purchased the insurance policy from Cincinnati Insurance Company. The project, with an original construction cost of about $8 million, was completed in October 2008. In September 2011, ONU became aware of water and moisture damage from hidden leaks caused by defective work by Charles Construction’s subcontractors. ONU spent nearly $6 million to repair the damages.

In 2012, ONU filed a lawsuit against Charles Construction in Hancock County Common Pleas Court for breach of contract and other violations of their agreement. Charles Construction then filed a complaint against multiple subcontractors, claiming they should be responsible for compensating ONU for the damages.

Charles Construction submitted an insurance claim with Cincinnati Insurance, seeking legal representation and to indemnify the contractor for any damages that might be awarded to ONU. Cincinnati Insurance agreed to provide a legal defense, but reserved its rights to claim that the general liability policy sold to Charles Construction doesn’t carry coverage for its claim. In 2013, Cincinnati Insurance sought a declaratory judgment asking the court to find that the insurer doesn’t have to defend or indemnify Charles Construction because under the Ohio Supreme Court’s Custom Agri Systems decision, it had the right to deny the contractor’s claim. Both ONU and Charles Construction contested the move by Cincinnati Insurance. In 2015, the trial court ruled that, based on Custom Agri Systems, Cincinnati Insurance could deny the claim and wasn’t obligated to defend Charles Construction.

ONU and the contractor appealed to the Third District Court of Appeals, which ruled that Custom Agri Systems remains good law as applied to construction defects caused by a contractor. However, the policy and the inclusion of a “products-completed operations hazard” clause could apply to defective work by subcontractors whose damage to the property is discovered after construction is completed, the appeals court ruled. It reversed the trial court’s decision, and Cincinnati Insurance appealed to the Ohio Supreme Court, which agreed to hear the case.

Disputed Clause Issue Was Decided in Prior Court Decision, Insurer Says
Cincinnati Insurance explains that CGL policies are the industry-standard policy for projects such as The Inn. The policies cover “property damage” caused by an “occurrence,” and those terms are defined in the policy. In Custom Agri Systems, the Supreme Court ruled that a claim of defective construction or workmanship isn’t a claim for “property damage” caused by an “occurrence” as defined by an industry-standard CGL. Cincinnati Insurance notes ONU and the contractor characterize the Custom Agri Systems case as a claim filed by a contractor to cover its own defective work. The university and contractor suggest that the ruling didn’t address the work of subcontractors, and the Court didn’t have to consider the “products-completed operations hazard” coverage. The appeals court found in this case that the products-completed operations hazard clause broadened the policy’s coverage to include the contractor’s claim.

Cincinnati Insurance argues there is no legal support to distinguish between the work done by the contractor itself or by subcontractors performing some of the work. It argues that the additional provisions in the CGL, which the Third District ruled could apply, aren’t separate coverage options but merely additional coverage for “property damage.” The insurer maintains that if the damage isn’t considered “property damage” caused by an “occurrence,” then the other provisions of the policy never come into play.

The insurer argues the Supreme Court determined that defective workmanship by a contractor isn’t property damage that’s covered by the CGL, but rather contractors can and do use other means, such as performance bonds, to help pay a claim by a property owner that the contractor’s work was defective. It also notes that Custom Agri Systems argued in its case that part of the defective work was completed by its subcontractors. Cincinnati Insurance asserts the Court first was asked to determine if defective workmanship was covered. If the Court answered yes, then it was asked to determine if an exclusion in the policy that addressed subcontractors applies. Since the Court ruled the faulty work wasn’t covered, it didn’t address the second provision, the insurer explains. Cincinnati Insurance maintains the facts in this case are nearly identical to Custom Agri Systems and that it had the right to deny coverage.

Contractor, University Argue Policy Covers Claim
Both ONU and Charles Construction are contesting the decision to dismiss Cincinnati Insurance from the lawsuit that pits the university and the contractor against each other. Both filed similar briefs in which they argue that this case is notably different than Custom Agri Systems, and that the Court doesn’t need to overrule its prior decision in order to find in their favor.

In its brief, Charles Construction notes that the “products-completed operations hazard” coverage lies at the heart of its entitlement to have Cincinnati Insurance defend it and pay for damages. The company maintains that it paid the insurance company for a CGL policy that provided $2 million in primary coverage and paid a separate premium for $2 million in excess coverage that included “products-completed operations hazard” coverage. It argues the standard for which to analyze an insurance policy is to treat it as a contract that must be read as a whole and consider the terms of both the primary coverage and the extra coverage.

The contractor argues the “property damage” referenced in the policy excludes the defective work of a contractor. But that provision has an exception that doesn’t apply to the work of subcontractors. Charles Construction argues that contractors, the companies that hire them for major projects, and the insurance industry understand that contractors are purchasing insurance coverage for defects discovered after the project is completed. It maintains that when a project is completed, the discovered defective work of subcontractors isn’t excluded from the definition of property damage from an occurrence. Because it isn’t excluded, the Court needs to move on to the other provisions of the contract and examine the “products-completed operations hazard” coverage, the contractor asserts. That coverage would apply to the subcontractor defects, Charles Construction concludes.

Charles Construction argues contractors need to purchase the completed project coverage from insurers because it isn’t the type of risk a contractor can control. Faulty workmanship during construction by the contractor or subcontractor is the responsibility of the contractor, and that is when a performance bond would be used to protect the owner, the company explains. But those bonds usually terminate when the project is completed and would not protect owners, such as ONU, from construction defects discovered years later.

“The policy does not cover damage to ‘your work’ caused by defective workmanship if the damage occurs before completion, regardless of whether the work was performed by the insured or by a subcontractor. Once the work has been completed, however, property damage caused by defective workmanship is covered if the work was performed by a subcontractor or if the work of the subcontractor itself was damaged by the insured or by another subcontractor,” Charles Construction’s brief states.

Friend-of-the-Court Briefs
An amicus curiae brief supporting Cincinnati Insurance has been submitted by the Ohio Insurance Institute. The organization noted that Ohio’s 12 appellate districts had been nearly evenly split on whether the defective construction work counted as an “occurrence” in a CGL policy until the Custom Agri Systems decision. The institute urges the Court to rule for Cincinnati Insurance, arguing the 2012 ruling has brought “transparency, uniformity, and predictability” to the law regulating construction defect coverage and it wants that atmosphere maintained.

Three amici briefs have been filed in support of Charles Construction and ONU. A joint brief was filed by the Associated General Contractors of Ohio, the Ohio Contractors Association, and the American Subcontractors Association. Another joint brief was filed by the Ohio Home Builders Association and the National Home Builders Association. The Associated Builders and Contractors Inc. and its Central Ohio, Ohio Valley, and Northern Ohio chapters submitted a joint brief.

- Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing Cincinnati Insurance Company: Richard Garner, 614.901.9600

Representing Ohio Northern University: Allen Rutz, 614.464.8330

Representing Charles Construction Services: David Kamp, 513.241.3685

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Did Police Have Probable Cause to Search Packages in Vehicle Backseat?

State of Ohio v. Edwin A. Vega, Case no. 2017-0618
Eighth District Court of Appeals (Cuyahoga County)

ISSUE: Was the U.S. Constitution’s prohibition against unreasonable search and seizure violated during a traffic stop when police found drugs and extended the detention of the driver to further search his car?

Edwin A. Vega was stopped by a Cleveland State University police officer at approximately 11 a.m. on March 28, 2015. The officer, Jeffrey Madej, saw Vega’s car turn left through a red light and initiated the stop.

When Madej approached the car, he smelled a strong odor of raw marijuana. Madej, who was wearing a body camera, asked Vega to exit the vehicle to conduct a search of the car. The officer opened the car’s center console and found several raw buds of marijuana, “shake weed” or particles of loose marijuana, and a package labeled “Sweet Stone Candy.” The officer also found three cell phones in different locations in the car. In the backseat of Vega’s car, Madej found rolling papers and a box holding several aerosol containers and two white, unlabeled, sealed envelopes. Vega told the officer the envelopes contained stickers and declined to give consent to the police to open them.

Madej discussed the situation with other law enforcement officials, including the Ohio State Highway Patrol. No units with dogs that search for and identify narcotics were available.

The officer issued traffic and drug possession citations and then opened the envelopes. Inside were three large, clear baggies filled with individually wrapped packs of Sweet Stone Candy. The candy was later found to test positive for THC, the main psychoactive component in marijuana. Vega had been detained for one hour, 12 minutes before his arrest.

Trial and Appellate Courts Exclude Evidence Found in Envelopes
Vega was indicted for drug possession, drug trafficking, and possessing criminal tools. Vega asked the trial court to suppress evidence found in the search. In January 2016, the court agreed not to admitas evidence the 150 packs of candy found in the envelopes, concluding that Vega was held for an unreasonable amount of time and the sealed envelopes from the backseat were opened while he was being unconstitutionally detained.

The Cuyahoga County Prosecutor’s Office appealed the decision to the Eighth District Court of Appeals. In February 2017, the appeals court upheld the trial court’s suppression of the evidence found in the envelopes. The length of the stop was unconstitutional, and the officer had no probable cause to open the envelopes, the Eighth District found.

The prosecutor appealed to the Ohio Supreme Court, which agreed to review the issue.

Parties Cite U.S. Supreme Court Cases
Both the prosecutor and Vega focus on two key U.S. Supreme Court opinions in their briefs to the Ohio Supreme Court. The cases – United States v. Ross (1982) and Wyoming v. Houghton (1999) – deal with warrantless searches of motor vehicles. 

In Ross, the U.S. Supreme Court ruled that “if probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.”

Houghton involved a traffic stop in which the officer saw that the driver had a syringe. The officer searched the car, including a passenger’s purse. The nation’s highest court stated: “When there is probable cause to search for contraband in a car, it is reasonable for police officers … to examine packages and containers without a showing of individualized probable cause for each one.”

Prosecutor Argues Circumstances Supported Search of Envelopes
Officer Madej stated that he smelled the odor of raw marijuana when he approached the car. He testified that he didn’t recognize the candy pack found in the center console as an illegal drug, and that he smelled no odor from the envelopes found in the car’s backseat. Although the Eighth District relied on the lack of odor from the envelopes to conclude that the officer had no probable cause to open them, the prosecutor argues that the appeals court improperly looked at that fact in isolation. Courts should instead review the totality of the circumstances, the prosecutor maintains.

The officer, who had experience dealing with student marijuana use, reported that the strong odor of marijuana from the car didn’t align with the small amount of the drug found in the center console and that the envelopes didn’t feel like they contained stickers, as Vega claimed. Madej also pointed to the other indicators of drugs found in the car, including the rolling papers, three cell phones, and aerosol sprays often used to mask the spell of marijuana.

“Fatal to the Eighth District’s reasoning is that it would ignore all other facts and indicators that an officer would rely upon to establish probable cause,” the prosecutor wrote.

Driver States that Police Could Only Search for Source of Odor
Vega’s position centers on the “object of the search” mentioned in Ross. Vega acknowledges that the officer could investigate the odor by conducting a search of the car to discover the source of the smell. But the search isn’t limitless, Vega stresses. The officer was permitted only to search for the source of the raw marijuana odor, Vega argues. He reasons that because the envelopes didn’t appear to be criminal and didn’t smell like marijuana, they gave no indication they were the source of the odor, and the officer lacked the probable cause necessary to unseal them.

While Houghton concluded that officers don’t need to establish individualized probable cause to search each package or container in a vehicle, probable cause to search a package only exists if the package can reasonably conceal the object of the officer’s search, Vega maintains.

Vega contends that none of the other suspicious materials – the rolling papers, aerosol cans, and cell phones – nor the feel of the envelopes could collectively or individually create probable cause to justify the search of the envelopes. As the trial and appellate courts concluded, “[W]ithout more, the smell of marijuana does not provide probable cause to open every container located during the search.”

Extended Detention Was Based on Reasonable Suspicion, Prosecutor Reasons
As far as the more than an hour of time that police detained Vega, the prosecutor maintains that the routine traffic stop transformed into an investigation into drug-related crimes when the marijuana buds and other materials were found. In Rodriguez v. United States (2015), the U.S. Supreme Court stated that, without reasonable suspicion, the extension of a traffic stop to allow a dog to sniff for drugs is an unconstitutional search. However, the prosecutor argues, Rodriguez doesn’t forbid the extension of a traffic stop once the officer has reasonable suspicion. In this case, the officer’s suspicion was that the driver has committed a crime other than the traffic violation, the prosecutor notes.

In the prosecutor’s view, law enforcement may extend a traffic stop and detain a driver as long as necessary to complete the search of the vehicle and its containers without showing individualized probable cause for each item.

For these reasons, the prosecutor contends that the evidence found in the envelopes should not have been suppressed and asks the Court to return the case to the trial court to allow the excluded evidence to be admitted.

Driver Maintains that, Without Cause to Open Envelopes, Police Had to Release Him
Once the officer finished the initial search, Vega argues, based on Rodriguez, there was no reasonable suspicion of criminal activity to warrant holding him any longer. Vega concludes he was unlawfully detained after the initial search of his car, the subsequent search of the envelopes was illegal, and the evidence was correctly excluded by the lower courts.

- Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing the State of Ohio from the Cuyahoga County Prosecutor’s Office: Daniel Van, 216.443.7800

Representing Edwin A. Vega: Justin Weatherly, 216.774.0000

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These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.

Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.