Court News Ohio
Court News Ohio
Court News Ohio

Tuesday, Oct. 26, 2021

State of Ohio v. Melvin Bourn, Case no. 2019-1298
Eighth District Court of Appeals (Cuyahoga County)

Tammy Smathers, individually and on behalf of the Estate of Harmony Brooklyn Rayne Carsey v. Rick Glass, Executive Director of Perry County Children's Services, et al., Case no. 2020-1062
Fifth District Court of Appeals (Perry County)

State of Ohio v. Ladasia Brooks, Case nos. 2020-1187
Fifth District Court of Appeals (Fairfield County)

What Must Defendant Present to Prove Indictment 12 Years After Alleged Rape Was Unjustified?

State of Ohio v. Melvin Bourn, Case No. 2019-1298
Eighth District Court of Appeals (Cuyahoga County)

ISSUE: To prove that the delay between a crime and an indictment caused “actual prejudice” to a defendant in a sexual assault case, must the defendant show that allegedly lost evidence existed and could have been obtained, that it wasn’t speculative, and that it was material to and substantially likely to prove consent?

In June 2017, a Cuyahoga County grand jury indicted Melvin Bourn on charges of rape, kidnapping, and gross sexual imposition – related to events in April 2005.

The prosecutor alleged that a woman identified as N.J. was having drinks at a bar across the street from her home in April 2005 and noticed Bourn staring at her. N.J. wasn’t feeling well and went home. N.J.’s friend stopped by later to check on her. When the friend opened the door to the home, she saw Bourn having sex with N.J., who seemed unresponsive. The friend said she waited outside and had words with Bourn when he left. Later that morning, the friend told N.J. what she had observed. N.J. went to the hospital, and a rape kit was taken.

Afterward, the prosecutor alleged, N.J. was at home with her friend, boyfriend, and two others when Bourn arrived. Bourn and N.J.’s boyfriend argued, and Bourn pulled a gun. According to the prosecutor, they struggled, and the gun went off, hitting N.J.’s boyfriend in the hand. Bourn ran away.

Bourn’s account of the events differs markedly. He said he met N.J. on the street, and she gave him her phone number, suggesting that he call her. A few days later, he called, and they decided to meet at her house. Bourn said they had consensual sex and were interrupted by N.J.’s friend, who left.

He said he called N.J. the next day and, when they talked, she invited him to her house. When he arrived, he was attacked by N.J.’s boyfriend.

Untested Rape Kits Sent to BCI
In spring 2011, the Cleveland Police Department launched a program to send its backlogged rape kits to the Ohio Bureau of Criminal Investigation (BCI) for DNA testing. N.J.’s rape kit was submitted to BCI in April 2013. In May 2015, the DNA indicated a match to Bourn. His DNA was in the state’s Combined DNA Index System (CODIS) since 2002 because of an earlier conviction.

Bourn pled not guilty to the charges. He asked the trial court in December 2017 to dismiss the case for “pre-indictment delay” – referring to the length of time between the alleged 2005 offenses and the 2017 indictment. The court held a hearing and denied his request, but he filed a motion asking the court to reconsider. The court agreed to review the request again and dismissed the case in July 2018.

The prosecutor appealed to the Eighth District Court of Appeals, which upheld the dismissal of the case against Bourn because of the delay in bringing charges. The prosecutor appealed to the Ohio Supreme Court, which accepted the case. The Court will hear arguments in the case at its special off-site session in Akron.

Right to Fair Trial Part of Constitution, Discussed in Top Court Decisions
The U.S. Constitution states that no person shall be deprived of “life, liberty, or property, without due process of law.” In a criminal case, due process refers to the constitutional guarantee that a defendant will receive a fair and impartial trial.

The U.S. Supreme Court ruled in United States v. Marion (1971) that the due process guarantee may support a court’s dismissal of an indictment if the defendant demonstrates at trial that the delay in charging the defendant prevented a fair trial. In a 2016 decision in State v. Jones, the Ohio Supreme Court ruled that “[a]ctual prejudice exists when missing evidence or unavailable testimony, identified by the defendant and relevant to the defense, would minimize or eliminate the impact of the state’s evidence and bolster the defense.”

Prosecutor Argues Accused Didn’t Prove Harm from Delay
In this case, the prosecutor maintains that Bourn must show concrete proof that he was prejudiced by the delay. The defendant can’t speculate about what an unavailable witness might say or how missing evidence impaired his defense, the prosecutor argues. The defendant also must show that serious efforts were made to obtain evidence or find witnesses and that evidence was lost because of the delay in filing charges, the prosecutor states.

The prosecutor contends that Bourn didn’t meet his burden of proof in his case. Bourn alleged that because of the delay he had no access to his cellphone records, the police file, or the bar where N.J. said they met. An investigator testified that he researched when Revol – Bourn’s cellphone provider at the time – went out of business and believed it closed in 2005. The prosecutor contends, though, that the investigator was given no phone number to research, and that nothing was presented in court about the company’s retention policy or any attempts to obtain records from the company or its successor. Also, the prosecutor asserts, arguments about the contents of the police file amount to guesswork.

The prosecutor maintains that the evidence Bourn argues would bolster his defense during a trial is speculative and has questionable value in proving his defense. Bourn also hasn’t proven that the evidence existed and that he made serious attempts to secure it, the prosecutor argues.

The prosecutor asks the Court to clarify the Jones decision by stating that unfounded claims of prejudice, such as those presented in this case, don’t meet a defendant’s burden of proving actual prejudice in a case about pre-indictment delay.

Man Argues Missing Evidence Critical for His Defense
Bourn states that the prosecutor wants to craft a new legal test specifically for sexual assault cases. But the Jones ruling has many “virtues” and doesn’t need to be altered, Bourn maintains.

“First among them is its universal applicability – it applies to any crime, from disorderly conduct to aggravated murder,” his brief states. “It also has the virtue of not being restricted to only a specific kind of evidence (say, evidence bearing on consent in an alleged rape). Its elegance, rather, is such that despite being universally applicable it can account for a virtually infinite variety of factual circumstances.”

Case by case is exactly how the Court in Jones meant for courts to apply the ruling, Bourn argues. However, the prosecutor wants the Court to think Jones permits defendants to “bamboozl[e]” courts and not prove they were prejudiced when there are delays in obtaining indictments, Bourn contends. He disagrees, pointing out that Jones requires the defendant to demonstrate “the proven unavailability of specific evidence or testimony.”

In his case, Bourn notes, the trial court found that the original investigative file is missing, the officer who investigated died in 2013, and there were no cellphone records. Also, Bourn’s DNA was in the CODIS database in 2005 so his identity in connection to the rape kit could’ve been discovered in 2005 – years before his 2017 indictment. The trial court noted N.J. was interviewed only in connection with Bourn’s alleged assault and shooting of her boyfriend, not as part of an investigation of the alleged rape, Bourn’s brief maintains, and no follow-up on the rape seems to have been conducted by police.

Bourn argues that certain evidence was never collected and there is no case file, while other evidence, such as his cellphone records, became unavailable over time. This missing evidence would have strengthened his defense that his encounter with N.J. was planned and consensual, and the missing evidence also would have minimized the impact of the prosecutor’s evidence, he contends.

“… Bourn suffered grave prejudice to his ability to mount an effective defense or receive a fair trial due to the government’s unexplained and inexplicable delay,” the brief concludes.

Prosecutors Group Submits Friend-of-the-Court Brief
The Ohio Prosecuting Attorneys Association filed an amicus curiae brief supporting the Cuyahoga County prosecutor. The association argues that a defendant who points to supposedly relevant and exculpatory evidence that is no longer available must offer concrete proof that the evidence existed in the first place. For example, the importance of the Revol cellphone records is based only on Bourn’s self-serving claims that he was a Revol customer – which was never established, the association asserts.

The association also notes that the charges against Bourn were dismissed before a trial. Any determination about whether Bourn suffered actual prejudice because of pre-indictment delay should be made only after a trial, the group maintains.

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 Tuyen Van, 216.443.7800

Representing Melvin Bourn from the Cuyahoga County Public Defender’s Office: Robert McCaleb, 216.698.3207

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Were Caseworkers Legally Responsible for Death of 2-Year-Old?

Tammy Smathers, individually and on behalf of the estate of Harmony B. Rayne Carsey v. Rick Glass, executive director of Perry County Children’s Services et al., Case No. 2020-1062
Fifth District Court of Appeals (Perry County)


  • If a children services safety assessment is falsified, does it prove that a children services worker acted recklessly, wantonly, or intentionally?
  • Should a trial court consider an affidavit from an expert about the conduct of children services workers when considering whether the workers are immune from liability and summary judgment should be granted?
  • Did the court of appeals properly review the appeal?
  • Are allegations of “comparative fault” relevant when evaluating whether the conduct of a children services worker is reckless, willful, wanton, or intentional?

Crystal Carsey and her husband, Tylor Carsey, have three children. Because of Crystal’s affair with a neighbor, Tylor moved out of their Perry County home in 2015 and in with his mother, Tammy Smathers, in Athens County. The local children services agencies began receiving complaints from Tylor and Smathers about Crystal’s care of the children, including 2-year-old Harmony.

Smathers made a complaint to Perry County Children Services (PCCS) on Nov. 12, 2015, stating that she thought Crystal was using meth and had a hoarding issue, with trash and dirty diapers making the home unsanitary. PCCS caseworker Nick Pease made an unannounced visit to Crystal’s house the next day, but no one was home. A few days later, Pease and the local police chief visited the home, and Crystal was there.

Crystal denied allegations that she was using meth. Pease and the police chief determined that the three children were fine. The home had water, heat, and food. Although the refrigerator was broken, food was stored in a neighbor’s refrigerator or outside in cold weather. Pease suspected a hoarding issue and advised Crystal to clean the house.

Pease returned to Crystal’s house four days later and found that the children were fine and the condition of the house had improved.

Toddler Taken to Hospital
On Nov. 21, Harmony fell twice at Smathers’ house and was taken to a local hospital. Smathers stated that Harmony went unconscious soon after arriving at her house. She notified Athens County Children Services, which contacted PCCS that evening. Smathers’ brief in this case states that she told them Harmony was emaciated, had a knot on her head, and her hair was falling out.

The hospital informed PCCS caseworker Katie Hursey that Harmony was being transferred for further evaluation to Cabell Huntington Hospital in West Virginia. Smathers’ brief states that their local hospital had documented injuries indicating abuse and neglect, including welts, bruising on various parts of Harmony’s body, head injuries, and a distended abdomen. Harmony weighed 15 pounds and was life-flighted to West Virginia, the brief notes. Hursey maintained, however, that the West Virginia hospital staff told her Harmony’s X-rays were negative, the child’s distended stomach probably was caused by gas, she was thin but not malnourished, she was cleared by the trauma team, and she likely would be released the next day.

Harmony was released to both of her parents on Nov. 24 and was taken to Smathers’ house. Pease stated he called Smathers on Dec. 3, and she said Harmony was staying with her and Tylor at her house. However, Smathers disputes that Harmony was “living with” her and her son as Pease seemed to believe. The next day, Tylor and Smathers visited the PCCS office at Pease’s request. They brought Harmony along. According to Pease, they said Harmony was staying with them, she was doing “awesome,” and they were going to court that day to get custody of the child. Smathers’ brief maintains that Pease implies they secured custody that day but notes that “obtaining custody is not a one-day affair.”

Smathers maintained that she made another report of concerns in early December in which she alerted PCCS that Harmony was being restrained in a crib in the upstairs bedroom of Crystal’s house, and the bedroom was stifling hot.

Pease scheduled a visit with Crystal on Dec. 11. Harmony was there. Crystal indicated that Harmony had been visiting with her father. Pease found the living conditions were improving and Harmony appeared fine.

Caseworker Reviews West Virginia Hospital Records
Pease received the medical records from Cabell Hospital on Dec. 22 and said it was the first time he knew that the doctors suspected Harmony had been abused. He concluded, though, that there was no longer a risk to Harmony because she was staying with her father and grandmother.

Harmony went back to her mother’s house on Dec. 25. Pease stated that he tried to call Crystal on Dec. 29 and Jan. 6, 2016, but received no answer, and no one was home during an unannounced visit on Dec. 31.

On Jan. 8, 2016, Harmony died from dehydration at Crystal’s house after being left in an overheated room without fluids.

Grandmother Alleges Wrongful Death in Lawsuit
In November 2017, Smathers filed a wrongful death lawsuit on behalf of Harmony’s estate against PCCS, Pease, Hursey, another caseworker, and PCCS executive director Rick Glass. In part, Smathers alleged that PCCS caseworkers ignored obvious dangers to Harmony, such as the heat of the room, the structure of the crib, and a nearby exposed electrical outlet. An amended complaint was filed in November 2018.

In October 2019, the Perry County Common Pleas Court granted a request for summary judgment in favor of PCCS, Glass, and the caseworkers. The court found they had immunity from legal responsibility under a state law, R.C. 2744.02.

Smathers appealed to the Fifth District Court of Appeals, which upheld the trial court’s decision. Smathers appealed to the Ohio Supreme Court, which agreed to review the issues at the Court’s special off-site session in Akron.

Ohio Law on Safety Assessments Ignored, Grandmother Contends
Smathers argues that PCCS’ policies and Ohio law require safety assessments and other steps to protect children. Safety assessments determine whether a child currently is safe or immediate action is needed, she states, adding that an assessment must be completed within four days after a caseworker contacts the family and must be entered into a database within 10 days. However, she contends, Pease didn’t complete a safety assessment until Dec. 29, several weeks after the case was opened following the Nov. 12, 2015 complaint and one week after receiving the hospital medical records from late November that reflected “overwhelming evidence of abuse and neglect.”

Smathers also maintains that, when Pease completed the assessment, he falsified that no safety risks to Harmony were indicated by his visits or by the medical records. The safety risks included that Harmony was physically harmed, Crystal had substance-use issues, there was no working refrigerator, and there were hazards in the house connected to the hoarding problem, Smathers states. She argues this falsification was a willful violation of state law with full knowledge that it was highly probable that serious harm to Harmony would result.

Assessment Done with Information Known at Time, Caseworkers Maintain
The caseworkers respond that Smathers ignores that Harmony’s living circumstances improved after her hospitalization, she wasn’t living with Crystal between Thanksgiving and Christmas, Tylor was entitled to keep Harmony with him as her father, and neither Smathers nor Tylor alerted PCCS that Harmony moved back to Crystal’s house at Christmas and stayed there.

They reject the implication that the safety assessment was falsified. Pease completed it with what he knew at the time and information that Smathers and Harmony’s father had reported to him, the caseworkers assert.

Parties Debate How Court Considered Expert Witness Statements
An affidavit was submitted to the trial court by a professor and dean of social work on Smathers’ behalf. Smathers’ brief states that the professor listed more than 70 factual statements about what PCCS caseworkers knew in the months leading up to Harmony’s death and described their actions as reckless conduct. The trial court concluded, though, that the professor offered a legal conclusion rather than factual statements. Smathers argues the court wrongly dismissed the professor’s extensive and detailed factual review without meaningful consideration.

The caseworkers counter that the expert’s belief that Harmony should have been removed from Crystal’s house was irrelevant because none of the caseworkers knew Harmony was living there after Thanksgiving 2015.

Grandmother and Caseworkers Disagree about Whether Blame Was Shifted
Smathers also argues that courts must consider the conduct only of government employees accused of wrongdoing when analyzing whether they have immunity under state law. In this case, however, the lower courts improperly shifted the focus to the allegation that she and Tylor didn’t notify PCCS that Harmony had returned to living with her mother, Smathers maintains.

The caseworkers respond that the lower courts didn’t assign fault to Smathers and Harmony’s father. The courts instead concluded that Smathers and Tylor didn’t notify PCCS that Harmony was returned to Crystal’s home on Christmas Day, and that circumstance was a defense for the caseworkers when determining whether they could be liable, the caseworkers contend. They argue they can’t be reckless in their actions given that they didn’t know Harmony was in Crystal’s care. Their brief concludes that the caseworkers, who serve in stressful and low-paying jobs, were trying to help the family through a difficult time and now are being second-guessed.

Groups Submit Briefs on Both Sides
Amicus curiae briefs supporting the Smathers’ positions were submitted by:

In support of the caseworkers, an amicus brief was filed collectively by the Buckeye Association of School Administrators, County Commissioners Association of Ohio, Ohio Association of School Business Officials, Ohio Job and Family Services Directors’ Association, Ohio Municipal League, Ohio School Boards Association, Ohio Township Association, and Public Children Services Association of Ohio.

Kathleen Maloney

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

Representing Tammy Smathers, individually and on behalf of the estate of Harmony Brooklyn Rayne Carsey: Jeremy Burnside, 740.353.2363

Representing Rick Glass, executive director of Perry County Children’s Services; Nick Pease; Katie Hursey; and Ben Taylor: John Teetor, 614.595.0703

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Can Probation Officer Search Probationer without ‘Reasonable Grounds?’

State of Ohio v. Daniel J. Campbell, Case No. 2020-1187
Fifth District Court of Appeals (Fairfield County)


  • Can Ohio courts require a person on probation to consent to warrantless searches as a condition of community control?
  • May a probation officer rely on a good faith belief that a court has authorized a warrantless search of a probationer on community control?
  • Can an Ohio court exclude evidence from a search based on a violation of a state law, which doesn’t provide a remedy for its violation?

Daniel Campbell was serving a prison sentence for robbery when a judge granted him early release in 2017. At his judicial release hearing, Campbell was given a set of community control terms and conditions, including a provision relating to searches. The provision stated: “I consent to being questioned by any Community Control Officer. I consent to searches of my person, my property, my vehicle, and my residence any time without a warrant. I understand this includes common areas and areas that are exclusive to me.”

Campbell signed the terms of the agreement and was released. The judge granting the release then added a handwritten notation that the search consent includes “phones and computers.”

Kelsey Conn was assigned as Campbell’s probation officer. About a month after his release, Conn met with Campbell to discuss the terms of his community control.

In August 2018, Conn concluded that Campbell had been compliant with his terms and deserved a reduced level of community control. As part of the process, she arranged a “home check,” where she and other community control officers arranged an unannounced search of Campbell’s home. When they arrived, Campbell didn’t object to the search and sat at a kitchen table while the officers searched the house. A cellphone was found in Campbell’s bedroom and was handed to Conn. She searched the phone and found pornographic images. The search was stopped. After confirming the phone belonged to Campbell, the officers obtained a warrant to conduct a more extensive search of the cellphone and other electronic devices he owned.

The officers uncovered child pornography on the phone and other devices. Campbell was indicted on nine charges related to child pornography.

In July 2019, he asked the court to suppress the evidence, arguing his rights under the Fourth Amendment to the U.S. Constitution were violated when the probation officers conducted a warrantless search of his home without probable cause. He also cited R.C. 2951.02, which states a probation department must have “reasonable grounds” to search a probationer. He asserted the officers didn’t have reasonable grounds at the time they searched his home and discovered his phone.

Probation Officer Testifies at Hearing
During the suppression hearing, Conn explained she had been a probation officer for five years and had completed all her training. She described reviewing the community control terms and conditions with Campbell, including the right to search at any time without a warrant. She told the court the office typically conducts a home check when considering changing a probationer’s community control terms.

She testified the probation department conducts the checks even if the probationer has not aroused any suspicion that they are in violation of their terms, and she confirmed that up until the search, Campbell had complied with all his community control conditions. She stated she annually reviews department policies and procedures and believed she conducted a constitutional and lawful search of Campbell’s residence when she discovered the phone.

The trial court ruled the search was valid and that the officers were acting in good faith reliance on the judicial order, which the officers believed gave them the right to search without a warrant. Campbell pleaded no contest to the charges, was sentenced to seven years in prison, and was required to register as a sex offender. He appealed his conviction to the Fifth District Court of Appeals.

The Fifth District reversed the trial court’s decision on suppressing the evidence, finding the officers violated R.C. 2951.02 by not providing Campbell “written notice” that they had “reasonable grounds” to conduct a warrantless search. The appeals court remanded the case to the trial court for further proceedings.

The Fairfield County Prosecutor’s Office appealed the Fifth District’s decision to the Ohio Supreme Court, which agreed to hear the case at the Court’s special off-site session in Akron.

Consensual Search Authorized by Law, Prosecutor Argues
The prosecutor’s office notes that the U.S. Supreme Court in its 2006 Samson v. California decision ruled that those on parole and probation have a reduced expectation of privacy. A suspicionless search of a person on parole doesn’t violate the Fourth Amendment, the high court ruled. The prosecutor argues that when Ohio amended R.C. 2951.02 in 1995 the legislature specified that an offender placed on probation must receive written notice if officers seek to conduct warrantless searches based on reasonable grounds. However, R.C. 2951.02 isn’t an exclusive provision that governs the searches of probationers, the office argues.

The prosecutor notes trial courts have been given broad discretion by the legislature to impose appropriate conditions for community control. The trial court’s order requested that Campbell consent to a search without a warrant at any time. The prosecutor argues state lawmakers provided no indication that the reasonable grounds limits placed in R.C. 2951.02 prevented a trial court from requesting and receiving permission from a probationer to conduct a search without written notice. Because the law didn’t prevent the agreement, the search was valid, the office concludes.

Even if the law was unclear about whether the officers needed reasonable grounds, the search should be permitted, the prosecutor asserts. The office maintains that a warrantless search is valid if the officer has a good faith and “reasonable” belief that the search was authorized. In this case, the probation officers relied on a standard consent provision provided by the trial court as a condition of community control, the office notes. And Conn discussed the provisions with Campbell after his release to determine if he understood the conditions, the office adds. Because Conn was acting in good faith that reasonable grounds weren’t required to conduct the search, the evidence uncovered by the search should be admitted, the prosecutor concludes.

Suppression Not Authorized, Prosecutor Asserts
The prosecutor argues the traditional remedy for a search that violates a person’s Fourth Amendment right is that the trial court will suppress the evidence. The office notes the Fifth District didn’t rule that Campbell’s Fourth Amendment rights were violated, but rather the search did not comply with a state law, R.C. 2951.02. The prosecutor argues that state lawmakers didn’t state the penalty if a probation officer violates R.C. 2951.02, and didn’t indicate that the result requires suppression of the evidence.

The prosecutors maintain that a court cannot impose a constitutional remedy, such as suppressing the evidence, for a violation of state law, unless that state law requires suppression. Thus, the evidence collected from the search can be used to convict Campbell, the prosecutor concludes.

Law Struck Balance to Protect Probationers, Offender Argues
Campbell notes the Ohio Supreme Court ruled in State v. Benton (1995) that warrantless searches could be ordered as a condition of parole and were constitutional. Lawmakers enacted R.C. 2951.02 in reaction to Benton to provide some balance between a probationer’s rights to privacy and the government’s need to ensure the offender is complying with the probation conditions, Campbell explains. The requirement of a written notice to conduct searches based on reasonable grounds was established to allow searches to be conducted without having to demonstrate the higher standard of probable cause that a condition was violated, he notes.

Campbell maintains that the Court has ruled that trial courts can only impose sentences that are authorized by the legislature. Because state law requires searches by probation officers to be conducted with reasonable grounds, a trial court doesn’t have the right to remove that requirement when imposing community control, he argues. The Fifth District correctly noted that the trial court’s order regarding warrantless searches still had to comply with R.C. 2951.02 and must be based on reasonable grounds, he maintains.

Campbell also notes the provision allowing for the search of his cellphone was added without his consent, and the search of his “property” doesn’t include his phone. Campbell notes the U.S. and Ohio Supreme Courts have ruled that cellphones are different than traditional “property” because of the vast amount of personal information stored on them. Even if Conn had a right to search Campbell’s home without a warrant, she needed to demonstrate a belief that a crime was being committed before searching the phone – and she needed a warrant to search it, he concludes.

Friends-of-the-Court Briefs Submitted
Amicus curiae briefs supporting the Fairfield County prosecutor’s position were submitted by the Ohio Attorney General’s Office and Ohio Prosecuting Attorneys Association.

Prosecutor, Attorney General Share Argument Time
The Court granted a request to allow the attorney general to share the 15 minutes of oral argument time allotted to the county prosecutor.

Dan Trevas

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 Fairfield County Prosecutor’s Office: Christopher Reamer, 740.652.7560

Representing Daniel J. Campbell: Scott Wood, 740.277.6404

Representing the Ohio Attorney General’s Office: Benjamin Flowers, 614.466.8980

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