Court News Ohio
Court News Ohio
Court News Ohio

Tuesday, Feb. 11, 2020

State of Ohio v. Seante Jones, Case no. 2019-0187
First District Court of Appeals (Hamilton County)

Joni Bey, et al. v. Jeffrey Rasawehr, Case no. 2019-0295
Third District Court of Appeals (Mercer County)

Belinda J. Torres Friedenberg v. Keith A. Friedenberg, et al., Case no. 2019-0416
Eleventh District Court of Appeals (Lake County)

Litchfield Township Board of Trustees v. Forever Blueberry Barn, LLC, Case no. 2019-0418
Ninth District Court of Appeals (Medina County)

Does Trial Court Error during Jury Selection Require Reversal of Conviction?

State of Ohio v. Seante Jones, Case No. 2019-0187
First District Court of Appeals (Hamilton County)

ISSUE: When the state exercises more than its allotted number of peremptory challenges in a criminal prosecution, does that error require automatic reversal of a conviction or must the defendant demonstrate prejudice?

In June 2016, Seante Jones and Ricardo Scott visited a Burlington Coat Factory in a Cincinnati mall. A store security staffer contacted the police and alleged that Jones and Scott had stolen merchandise. Police arrested the men, and they were charged with theft.

Jones’ alleged crime is a misdemeanor, which requires an eight-person jury. The prosecutor and defense counsel completed selection of the jury and moved on to questioning alternate jurors. The prosecutor asked to address the Hamilton County Municipal Court judge in chambers or at sidebar. Following their discussion, the court permitted the state to exercise the third of its peremptory challenges to individuals considered for the main jury. A juror who was seated earlier was removed, and an alternate juror replaced the removed juror.

The jury found Jones guilty of complicity rather than theft. The trial court sentenced him to 180 days in jail, a $200 fine, and court costs. The court suspended all but three days of the jail time and placed Jones on six months of community control.

First Appeal Argues State Waived Challenge of Juror
Jones appealed to the First District Court of Appeals, arguing the trial court improperly allowed the prosecutor to use its peremptory challenge too late in the proceedings and after the prosecutor had waived challenging that juror at the time the juror was questioned. The First District found that the trial court’s action allowing a juror to be challenged out of sequence violated the state criminal rules governing peremptory challenges of jurors. However, the appeals court also upheld Jones’ conviction, determining that the error didn’t require reversal of the verdict and Jones didn’t show the mistake changed the outcome of his trial.

The First District also stated that its ruling is in conflict with a 1998 decision from the Tenth District Court of Appeals (State v. Holloway). The Supreme Court agreed and will consider the conflict between the appellate courts.

Man Maintains Error Implicated His Constitutional Right to Fair Trial
Jones, the Hamilton County Prosecutor’s Office, and the First District all acknowledge that the trial court’s late grant of a peremptory challenge to the prosecutor was an error. According to a state criminal rule, a party that doesn’t exercise a challenge “in turn” waives its right to challenge that juror  later, Jones’ brief points out.

The question in this case is whether the trial court’s mistake is a type of legal error called “structural error.” Ohio Supreme Court decisions have described structural error as one that renders a trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence, and one that involves a constitutional error, Jones’ brief states.

Jones argues the error in his case violated the Ohio Constitution’s provisions that the “right to a trial by jury shall be inviolate” and that the accused receives “a speedy public trial by an impartial jury.” A U.S. Supreme Court ruling – Swain v. Alabama (1965), citing an 1892 decision – states, “The persistence of peremptories and their extensive use demonstrate the long and widely held belief that peremptory challenge is a necessary part of trial by jury.”

By giving the state an extra challenge, and doing so at a time when the defense no longer could respond to that challenge with its own regarding that juror, the trial court “unfairly skewed the trial process in favor of the state,” Jones contends. He asserts that by changing the jury composition, the entire trial was altered.

A structural error by definition doesn’t require the defendant to show prejudice, Jones maintains, citing the Tenth District’s Holloway decision. Because the trial court’s mistake was a structural error, the verdict must be reversed, he concludes.

State Responds that Error Was Procedural, not Constitutional, Issue
The Hamilton County prosecutor maintains there is no right to peremptory challenges protected by the Ohio or U.S. constitutions. The right to peremptory challenges exists because of the state’s criminal rules, the prosecutor asserts.

The U.S. Supreme Court has defined certain errors as structural, such as denying counsel of choice, blocking self-representation, or preventing a public trial, as well as failing to convey to a jury that guilt must be proved beyond a reasonable doubt. But errors with peremptory challenges haven’t been identified at the federal level as structural, the prosecutor’s brief states.

In State v. Greer (1988), the Ohio Supreme Court distinguished between a substantive, but not constitutional, right to peremptorily challenge jurors and a procedural right to a certain number of peremptory challenges, the prosecutor maintains. The office argues Jones didn’t demonstrate how the error made his trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.

The prosecutor argues that courts should consider this type of error under a type of legal review called “harmless error review,” which requires Jones to show the mistake changed the outcome of his trial. The office rejects the Tenth District’s decision in Holloway, contending that the appeals court didn’t point to an implicated constitutional right when it ruled that prejudice doesn’t need to be shown in cases involving peremptory challenge errors.

Kathleen Maloney

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

Representing Seante Jones from the Hamilton County Public Defender’s Office: David Hoffmann, 513.946.3876

Representing the State of Ohio from the Hamilton County Prosecutor’s Office: Alex Havlin, 513.946.3076

Return to top

Is Protection Order Banning Any Social Media Posting an Unconstitutional Prior Restraint?

Jeffrey Rasawehr v. Rebecca Rasawehr and Joni Bey, Case No. 2019-0295
Third District Court of Appeals (Mercer County)


  • Do civil stalking protection orders constitute a prior restraint on constitutionally protected free speech if they ban a person from posting any message on social media about those who sought protection orders?
  • Does the “speech integral to criminal conduct” exception to protected speech apply to civil stalking protection orders if a trial court makes a finding that the alleged offender harassed the protection-order seeker?

Participants in this case tell the Ohio Supreme Court that two fundamental rights are at issue: the right to free speech versus the right to life, liberty, and the pursuit of happiness, which must include the right to safety and security.

The case has drawn state and national attention from advocates for free speech, particularly for online speech, and advocates for the victims of domestic violence, who are participating through the filing of amicus curiae briefs. The Electronic Frontier Foundation, along with others, argue that a civil stalking protection order (CSPO) banning a man from posting any accusations on social media about his mother and sister could set a dangerous precedent. It could allow a court to block the future speech by “anyone who sharply and repeatedly criticizes others – whether government officials, businesspeople, or as here, family members.” Domestic violence victim advocates counter that “any ban on the use of protective orders to prevent future abusive, harassing and stalking conduct would eviscerate the purposes and intent of all civil protection orders in the state of Ohio.”

In November 2017, Joni Bey and Rebecca Rasawehr petitioned the Mercer County Common Pleas Court for CSPOs against Jeffrey Rasawehr. Bey identified nine incidents between June 2016 and November 2017 in which her brother, Jeffrey Rasawehr, allegedly made claims on internet websites and social media outlets that Bey killed her husband or participated in a conspiracy with Mercer County officials to “cover up” the circumstances of her husband’s death. Additionally, Bey alleged that Rasawehr made a false complaint to Mercer County Children Services that she was endangering her son. He also purchased a billboard near Bey’s house advertising a website called “,” which included his photo and stated, “Jeff Rasawehr says, ‘Learn about county corruption & cover-ups at…’”

Rasawehr’s mother, Rebecca Rasawehr, identified 14 incidents in the same time period in which her son claimed she killed her husband, Jeffrey Rasawehr’s father, and she was involved in acts of conspiracy with Mercer County officials to cover-up the circumstances of her husband’s death. The mother and sister claimed Rasawehr hired a private investigator who attempted to interview them under false pretenses. Both women characterized the behavior as bullying and harassment, and indicated they suffered from distress caused by the episodes. Rasawehr chose not to testify at the hearing, instead invoking his Fifth Amendment right to remain silent.

The trial court found the women met the requirements under R.C. 2903.214 to receive CSPOs. The orders were written on standard court forms that stated the court made the findings that Rasawehr knowingly engaged in a pattern of conduct that caused the women to believe he would cause them physical harm or mental distress. The standard forms limited Jeffrey Rasawehr’s contact with the women for five years. The trial court then included in an additional order stating that Jeffrey Rasawehr could not post anything online related to the women and must take down postings on It also stated that he couldn’t post about the deaths of the husbands “in any manner that expresses, implies, or suggests” the women are “culpable in those deaths.”

Rasawehr appealed the CSPOs to the Third District Court of Appeals, alleging the additional written restrictions were a prior restraint on his right to free speech, which was protected by the U.S. and Ohio constitutions. In a divided decision, the appeals court affirmed the trial court’s decisions. One judge ruled that only the second part of the written order, related to comments about the deaths of the husbands, could be restricted.

Rasawehr appealed the decision to the Ohio Supreme Court on several grounds. The Court agreed to consider one argument — whether the additional language regarding future online postings is an unconstitutional prior restraint on free speech.

Court’s Order Overly Broad, Man Argues
Rasawehr argues that an order prohibiting him from speaking across a broad category of speech includes speech that is protected under the First Amendment to the U.S Constitution, and Article 1, Section 11 of the Ohio Constitution. He notes the Ohio Supreme Court held in its 2010 State ex rel. Toledo Blade Co. v. Henry Cty. Ct. Cmn. Pl. decision that judicial orders operating “to forbid expression before it takes place” are prior restraints. He maintains that courts can constrain unprotected speech, such as defamation, obscenity, and true threats, but that any court placing a prior restraint on future speech without first deciding the speech is unprotected is exceeding its authority and abusing its discretion.

Rasawehr maintains that his allegations about his sister and mother aren’t defamatory because no court has ruled them to be so, and he contends that his defense to any claim of defamation is that the statements he made are true. The Third District stated that Rasawehr’s communications weren’t worthy of free speech protections because they were born out of a vendetta, seeking to cause mental distress to his mother and sister and to exact personal revenge, he notes. Rasawehr counters that the there has never been a “vendetta” exception to free speech protection or a limit on speech seeking revenge. He maintains the Ohio Supreme Court has held only speech that has judicially been found to be libelous can be restrained, and the CSPOs go far beyond what can be legally restrained under the threat of criminal violation of the protection orders.

Rasawehr also rejects the ruling that the posting ban meets the “speech integral to criminal conduct” exception. That exception applies to speech that is part of committing a crime, such a blackmail, where the speech triggers a separate criminal act. He maintains that “speech itself” can’t be the speech integral to criminal conduct, and the posting ban blocks him from speaking about his sister or mother regardless of whether or not it’s connected to a crime.

Order Restricts Unprotected Speech, Women Assert
Rasawehr’s sister and mother acknowledge that prior restraints are presumed to be invalid, but are permissible when applied to unprotected speech. The two assert that the CSPOs restrict unprotected speech integral to criminal conduct, and Rasawehr’s First Amendment rights aren’t infringed by the order. Citing the U.S. Supreme Court’s 1947 Giboney v. Empire Storage and Ice Co. decision, the women argue that courts have long recognized the “speech integral to criminal conduct” exception to the First Amendment, and that it has been consistently applied by courts in the context of stalking and domestic violence laws.

The women argue the posting ban is a proper restraint on free speech because it is narrowly tailored to advance Ohio’s compelling interest in protecting its citizens. The trial court made the finding that Rasawehr’s multiple actions beyond speech to discredit his mother and sister constituted menacing by stalking, a violation of state law. The posting ban is designed to limit the exercise of free speech only as necessary to protect the state’s compelling interest in protecting the physical and mental health of Ohioans, they note. The CSPO law includes the heightened requirement that the accused be found to “knowingly” attempt to cause physical harm or mental distress through speech, the women explain. The trial court conducted a hearing, in which Rasawehr was permitted to testify, before concluding that his comments were intended to cause the women mental distress. The women conclude the CSPOs weren’t limiting speech only, but a course of action that constitutes stalking through both speech and nonspeech conduct.

Advocates Joining Oral Argument
The Legal Aid Society of Cleveland and the Ohio Domestic Violence Network filed an amicus brief on behalf of the women. They also received the Court’s permission to split oral argument time with the women.

Other Friend-of-the-Court Briefs
Rasawehr’s position is supported by a joint brief filed by the Electronic Frontier Foundation; the 1851 Center for Law; seven current or former Ohio law school professors; Aaron H. Caplan from the Loyola Law School; and Eugene Volokh of the UCLA Law School. Caplan and Volokh are authors of two law review articles that deal directly with free speech and civil protection orders.

Block Communications, the owners of the Toledo Blade and other media outlets, also filed a brief supporting Rasawehr. The company argues that despite the novelty of attempting to block a newer method of communication – social media – the legal precedent set by the Court in Toledo Blade and other decisions still reliably protect free speech and limit prior restraints.

Dan Trevas

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

Representing Jeffrey Rasawehr: Dennis Sawan, 419.900.0955

Representing Rebecca Rasawehr and Joni Bey: Ryan Miltner, 419.753.2157

Representing the Legal Aid Society of Cleveland: Alexandria Ruden, 216.861.5713

Return to top

Do Parents Seeking Custody or Spousal Support Waive Physician-Patient Privilege?

Belinda J. Torres Friedenberg v. Keith A. Friedenberg et al., Case No. 2019-0416
Franklin County

ISSUE: During divorce proceedings, does a parent seeking custody or spousal support waive the physician-patient privilege under R.C. 3217.02(B)?

In 2016, Belinda Torres Friedenberg filed for divorce from her husband of 28 years, Keith Friedenberg. The couple has four children, two of whom were minors at the time of the divorce. Belinda sought sole custody of the children and spousal support, while Keith requested that the domestic relations court designate him the legal custodian and residential parent. Keith sought the release of all of Belinda’s medical records, including those from the Hanna Perkins Center for Child Development and the Cleveland Psychoanalytic Center.

Belinda sought to quash the subpoenas issued to the physicians and psychologists ordered to release her records, citing the physician-patient privilege and psychologist-patient privilege authorized under R.C. 3217.02(B). A magistrate overseeing the case ruled that under Ohio law, those requesting custody place their physical and mental conditions at issue and waive their rights to the physician-patient and psychologist-patient privileges. The magistrate directed that her medical records be delivered under seal to the court for an in camera inspection, and the court would determine if the records were relevant to the case before allowing their release to the parties.

Belinda challenged the magistrate’s decision, which denied her request to block the records review. Attorneys drafted a protective order requested by the court, which protected the confidential materials in the records. The trial court issued the order over Belinda’s objections, finding that seeking custody and spousal support automatically waives the privilege.

Belinda appealed to the Eleventh District Court of Appeals, which ruled 2-1 to affirm the trial court. The dissenting judge stated that while the physical and mental health of a person seeking custody and spousal support is at issue, the confidential records are still privileged until the court or the opposing party demonstrates the need for the records to determine the fitness of the parent to maintain custody or the ability of the spouse to earn a living.

Belinda appealed the Eleventh District’s decision to the Supreme Court, which agreed to hear the case.

Privilege Not Waived, Information Could Be Gained by Other Means, Wife Argues
Belinda argues that her physical and mental health weren’t at issue in the parties’ dispute over custody, and she notes the couple agreed to a shared parenting plan. Additionally, she maintains her health wasn’t at issue in the spousal-support dispute either, and that she didn’t claim her health hindered her ability to support herself. She notes the only grounds for which she sought support was the disparity in income, indicating Keith earned more than $2 million annually while she was paid $65,000 for her work. She maintains the only reason for Keith to seek the records was to harass and intimidate her during the divorce proceedings.

The trial court stated that under R.C. 3109.04(F)(1)(e), the court shall consider the “mental and physical health of all persons involved” when deciding the best interest of the child in a custody dispute. Similarly, the court indicated that under R.C. 3105.18(C)(1)(c), when determining if spousal support is appropriate and reasonable, the “court shall consider the mental conditions of the parties.” The court reasoned that those provisions require the parties to waive the physician-patient privilege and provide the records to the court.

Belinda counters that the statutes don’t explicitly require the privilege to be waived and notes the trial court is directed to the consider the information under the Ohio Rules of Civil Procedure. The rules only allow the privilege to be waived if the confidential information is relevant to the issue in the case, she maintains, and that in neither the custody nor the spousal-support matter did any party dispute her physical or mental health.

Several other states have upheld the privilege in divorce proceedings and cited other ways courts have used to assess a person’s physical and mental health, she notes. Less-intrusive methods include examination by an independent evaluator, a court-ordered physical or health exam, or the appointment of a guardian ad litem, who would assess the effects of an individual’s mental health on the best interest of the child, she concludes.

Records Order Consistent with Ohio Law, Husband Argues
Keith notes that the magistrate’s order of a confidential review of the medical records is consistent with Ohio law and routinely happens in custody disputes throughout Ohio courts and in other states. He notes that Belinda sought and received his physical and mental health records during the proceedings without his objection and that the domestic court deemed Belinda’s records to be relevant to the issues in the case for permitting their release to his attorneys. Contrary to Belinda’s claim that the trial court’s decision would completely eviscerate the physician-patient privilege, he argues the court took the appropriate steps to limit the release to only relevant information. He notes that Belinda didn’t claim any particular record wasn’t relevant and shouldn’t be disclosed, but made the blanket assertion that he wasn’t entitled to any records.

Keith also argues that he did raise Belinda’s mental health as an issue in the custody claim, and when Belinda sought sole custody, she had the burden of showing she was capable of caring for the children. That action waived her privilege to her mental health records, he contends. In regard to spousal support, Keith argues R.C. 3105.18(C)(1)(c) requires the court to consider Belinda’s mental health. If she didn’t want the factor considered, she needed to request a court order or for the parties to stipulate health wasn’t an issue, which she didn’t. The court examined the records and determined health issues were relevant to the matter and that the records should be released.

Dan Trevas

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

Representing Belinda J. Torres Friedenberg: Joseph Stafford, 216.241.4572

Representing Keith A. Friedenberg et al.: Gary Okin, 440.352.3391

Return to top

Was Barn Event Space Exempt from Township Zoning Regulations?

Litchfield Township Board of Trustees v. Forever Blueberry Barn LLC, Case No. 2019-0418
Ninth District Court of Appeals (Medina County)

ISSUE: Under R.C. 519.21(A), for a building’s use to be exempt from zoning regulations, must the owner’s use of the building on a property where grapes are cultivated be primarily for the production and sale of wine?

The owner of Forever Blueberry Barn built a 4,500-square-foot barn on 33 acres in Litchfield Township. On July 13, 2015, the Litchfield Township Board of Trustees filed a complaint in the Medina County Common Pleas Court, alleging that the use of the building violated township zoning regulations because it was used for wedding receptions and social events – a type of business not permitted in the residential district.

The court issued a permanent injunction in January 2016 prohibiting Forever Blueberry from using the property for events. In March, Forever Blueberry asked to terminate the injunction because the company was cultivating grapes for wine on the property and using the barn as a winery to make and sell wine. The court agreed that, under R.C. 519.21(A), the township had no zoning authority over Forever Blueberry’s building and structures used for the vinting and selling of wine.

Litchfield Township appealed to the Ninth District Court of Appeals, which in January 2018 reversed the trial court’s ruling. The Ninth District instructed the trial court to determine whether the barn was used primarily for vinting and selling wine. The trial court concluded the property was used for viticulture and the barn was used primarily to vint and sell wine. After another appeal by the township, the Ninth District upheld the lower court decision.

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

Barn’s Main Use Isn’t Making and Selling Wine, Township States
R.C. 519.21(A) states that a township has no power “to prohibit the use of any land for agricultural purposes or the construction or use of buildings or structures incident to the use for agricultural purposes of the land on which such buildings or structures are located, including buildings or structures that are used primarily for vinting and selling wine and that are located on land any part of which is used for viticulture.”

Litchfield Township argues this exemption from zoning regulations requires that the barn’s primary use is the vinting and selling of wine and Forever Blueberry didn’t establish that was true. The township’s inspector found that only 186 square feet, or about 4 percent, of the barn was an area for making wine, and the rest of the space was used for receptions and events. Forever Blueberry’s managing member, Joshua Pniewski, testified that he plans to have customers pay to use the space based on a minimum wine purchase, or a minimum wine purchase plus a rental fee.

The township contends that the trial court and the Ninth District failed to consider the amount of space used in the barn for vinting and selling wine when deciding the barn’s primary use under the law. The barn’s primary use is as an event space, and the making and sale of wine is only incidental to that purpose, the township maintains.

Although Forever Blueberry cites the Ohio Supreme Court’s decision Terry v. Sperry (2011), the township counters that the building’s primary use wasn’t an issue in that case, and the decision gives no guidance about what qualifies as primary use under the state law.

Wine Is Made and Sold in Barn, Company Argues
Forever Blueberry responds that Litchfield Township’s regulations at the time of the trial stated, “Land in any district may be used for agricultural purposes.” Because Forever Blueberry uses its land for agricultural purposes, that alone exempts it from the zoning regulations, the company argues.

Forever Blueberry also maintains that it meets the qualifications in R.C. 519.21(A) for exemption from township authority. The owner presented evidence that the entire barn will be used for vinting, selling, and marketing its wine. Forever Blueberry states the inspector visited on a day when the company wasn’t making wine, so the amount of space it uses when producing wine was misrepresented. The company argues revenue will be generated from the sale of wine during events, and the barn will be used as a marketing tool to sell the wine. It adds that it wasn’t able to implement its business plan earlier because of the court injunction.

The company also asserts that R.C. 519.21(A) doesn’t describe the factors necessary to decide a building’s primary use. But the law does use the word “primarily,” which means “for the most part” or “mainly” and doesn’t mean “exclusively or to the exclusion of all other uses,” the company’s brief notes.

Terry v. Sperry stated, “A township may not prohibit the use of buildings for the vinting and selling of wine on a property as long as the property also cultivates grapes for wine making.” Forever Blueberry notes it has planted 50 grapevines to grow wine on its property, has ordered more vines, has purchased an array of equipment for producing wine, and has about 144 bottles of wine ready for sale.

The trial court was in the best position to consider the evidence, and the record shows that Forever Blueberry engages in viticulture on the Litchfield Township property and uses the barn primarily to make and sell wine, the company concludes.

Kathleen Maloney

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

Representing Litchfield Township Board of Trustees: Tom Karris, 440.846.8838

Representing Forever Blueberry Barn LLC: Michael Laribee, 330.725.0531

Return to top