Wednesday, January 7, 2026
State of Ohio v. Sydney N. Powell, Case No. 2025-0196
Ninth District Court of Appeals (Summit County)
State of Ohio v. Daverrick Lash, Case No. 2025-0218
Eighth District Court of Appeals (Cuyahoga County)
Credit Acceptance Corporation v. Gloria Beard et al., Case No. 2025-0246
Eighth District Court of Appeals (Cuyahoga County)
Columbus Bar Association v. Javier H. Armengau, Case No. 2019-0500
Franklin County
Does Criminal Defendant Have Unconditional Right To Recall Expert Witnesses?
State of Ohio v. Sydney N. Powell, Case No. 2025-0196
Ninth District Court of Appeals (Summit County)
ISSUES:
- Does a criminal defendant have an unconditional right to recall expert witnesses in the sur-rebuttal portion of a trial?
- Is a trial court’s decision to prevent a criminal defendant from submitting sur-rebuttal evidence subject to harmless-error analysis?
BACKGROUND:
Sydney Powell was charged with murder, felonious assault, and tampering with evidence following the death of her mother. The incident occurred on March 3, 2020, at the Powell residence in Akron. Powell entered a plea of not guilty by reason of insanity (NGRI), asserting she suffered from a severe mental disease that prevented her from understanding the wrongfulness of her actions. During the trial, three expert psychologists testified on Powell’s behalf, supporting her NGRI defense by highlighting her mental state at the time of the incident.
In response, the Summit County Prosecutor’s Office presented its own expert witness during the rebuttal phase. This expert criticized the methodologies used by Powell’s experts and introduced new opinions challenging the foundation of her defense. The prosecutor argued Powell’s actions after the incident — impersonating her mother in a call to Mount Union officials, misleading her father about her mother's condition, and fabricating a break-in — demonstrated her awareness of the wrongfulness of her conduct and directly challenged her NGRI defense.
Powell sought to recall her experts to address these new points during a sur-rebuttal, but the trial court denied her request. The court ruled Powell’s experts had already testified and the sur-rebuttal was unnecessary. The jury rejected Powell’s defense of NGRI. She was found guilty on all four counts listed in the indictment: two counts of murder, one count of felonious assault, and one count of tampering with evidence. The trial court imposed a sentence of life in prison with eligibility for parole after 15 years.
Court of Appeals Overturns Convictions
The Ninth District Court of Appeals reversed Powell’s convictions, finding the trial court made an error by denying her the opportunity to recall her expert witnesses. The appellate court determined the prosecutor’s expert had introduced new evidence during rebuttal, which Powell had the right to address. The appeals court emphasized that this denial impacted Powell’s ability to fully present her NGRI defense.
The Summit County Prosecutor’s Office appealed the Ninth District’s decision to the Supreme Court of Ohio, which accepted the case.
No Unconditional Right to Sur-rebuttal, Prosecutor Asserts
The prosecutor argues the appellate court misapplied the law regarding rebuttal and sur-rebuttal evidence and failed to conduct a harmless-error analysis. The prosecutor argues criminal defendants don’t have an unconditional right to present sur-rebuttal testimony. The office argues that trial courts possess broad discretion in managing the presentation of evidence, including during the rebuttal and sur-rebuttal phases. This discretion should only be challenged in cases of clear abuse. The state asserts Powell’s request to recall her experts was unnecessary because the testimony sought during sur-rebuttal would have been repetitive of evidence already presented during the initial presentation by her witnesses.
The prosecutor further argues the Ninth District misapplied the law governing rebuttal and sur-rebuttal evidence. He contends the appellate court failed to conduct a harmless-error analysis, which is required to determine whether denying sur-rebuttal testimony had a significant impact on the outcome of the trial. The state maintains any error in denying Powell’s request was harmless because the evidence presented during rebuttal didn’t fundamentally alter the case.
Additionally, the state emphasizes that Powell’s actions following the incident, including an alleged attempt to cover up the crime, demonstrated her awareness of the wrongfulness of her conduct. The prosecutor cites prior case law to support its position that post-incident behavior, such as efforts to conceal evidence, can be indicative of a defendant’s understanding of the wrongfulness of their actions. This argument directly undermines Powell’s NGRI defense, the prosecutor maintains.
New Evidence Harmed Defense, Daughter Maintains
Powell argues the Ninth District correctly ruled in her favor, deciding she had an unconditional right to present sur-rebuttal testimony under the circumstances of her case. She contends the state’s expert introduced new evidence during rebuttal, specifically by challenging the methodologies used by her experts. Powell asserts this new evidence went to the core of her NGRI defense and required a response to ensure a fair trial.
Powell further argues the trial court’s decision refusing to allow sur-rebuttal testimony wasn’t harmless. She maintains the inability to address the state expert’s new opinions significantly undermined her defense and impacted the jury’s ability to fully evaluate her NGRI claim. Powell contends the state cannot demonstrate beyond a reasonable doubt the trial court’s error was harmless.
Additionally, Powell asserts the prosecutor waived its harmless-error argument by failing to raise the issue earlier in the proceedings. She argues the appellate court’s decision was consistent with established legal principles and the trial court’s denial of sur-rebuttal testimony deprived her of the opportunity to fully present her defense.– Andy Ellinger
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the State of Ohio from the Summit County Prosecutor’s Office: C. Richley Raley, Jr., rraley@prosecutor.summitoh.net
Representing Sydney N. Powell: Daniel Eisenbrei, deisenbrei@milliganpusateri.com
Are Courts Required to Provide Extensive Reasoning for Accepting or Rejecting Post-Conviction DNA Applications?
State of Ohio v. Daverrick Lash, Case No. 2025-0218
Eighth District Court of Appeals (Cuyahoga County)
ISSUE: Are courts required to provide explanations for how they arrived at their opinions when considering applications for post-conviction DNA testing?
BACKGROUND:
In January 2015, William Burton was shot and killed at a bar on the east side of Cleveland. Officers saw two suspects fleeing the area and recovered a handgun in the spot where one of the suspects slipped during the pursuit. Bar patrons who had been drinking before the incident gave statements identifying the shooter as Daverrick Lash. In June, he was indicted for murder.
One witness told police during an interview following the shooting that she saw someone spit on the ground and pull out a pistol. However, at Lash’s trial, she was reluctant to uphold that statement while testifying. During the trial, another witness testified to hearing the woman making her statement to police about the shooter spitting.
Police collected two samples of saliva near the victim’s body and had them tested for DNA. One matched the victim’s DNA, and the other matched Lash’s. Results from DNA testing on the handgun came back as inconclusive. The shell casings from the bar were recovered but never tested for DNA.
In February 2016, the jury found Lash guilty of aggravated murder and various other crimes. Lash was sentenced to life in prison with the possibility of parole after 31 years.
Lash maintains his innocence. He disputes the version of facts given by the prosecution and counters that there was much uncertainty in the witness statements and DNA testing. He appealed his convictions to the Eighth District Court of Appeals, raising several claims about the evidence and testimony used in his case. The Eighth District upheld his convictions.
Additional DNA Testing Requested
In August 2021, Lash filed an application for post-conviction DNA testing, in which he requested that the shell casings be tested and that the state upload previous results from the handgun and magazine into the FBI’s DNA database. He argued that the results from further testing would be outcome determinative, meaning the results could carry enough weight to overturn his conviction. The trial court denied Lash’s application, finding the outcome wouldn’t be different had the casings been tested.
Lash appealed the denial to the Eighth District, which found that the trial court failed to provide a basis for its decision as required by statute. The case was remanded to the trial court. The Cuyahoga County Prosecutor’s Office appealed to the Supreme Court of Ohio, which agreed to hear the case.
No Further Explanation Required, Prosecutor Asserts
Ohio law gives convicted offenders a chance to seek DNA testing if they can show that the results of that testing would have been outcome determinative, meaning a jury more than likely would not have convicted the defendant based on the results of the DNA test.
Citing the Court’s 2004 State v. Francis decision, the prosecutor argues that courts are generally not required to issue written opinions for purposes of explaining the reasoning behind their judgments. In some cases, rules or statutes require such explanations, but the prosecutor argues that’s not true of R.C. 2953.73(D), the law on DNA testing requests.
The statute reads, “Upon making its determination, the court shall enter a judgment and order that either accepts or rejects the application and that includes within the judgment and order the reasons for the acceptance or rejection as applied to the criteria and procedures set forth in sections 2953.71 to 2953.81 of the Revised Code.”
According to the prosecution, the “plain language of the statute is unambiguous.” The prosecutor goes on to argue that the law only requires the trial court to state a reason listed in the statute for accepting or rejecting a post-conviction DNA application. No further explanation of the court’s decision is needed, the prosecutor asserts.
Further, the prosecutor contends that the Eighth District continually requires trial courts to go beyond what is required by the statute, comparing prior Eighth District rulings to those of the First and Tenth districts.
Further Reasoning Required by Statute, Applicant Argues
Lash argues the prosecution’s interpretation of the statute is read in a vacuum, omitting a key component. According to Lash, the trial court’s order finding that DNA testing would not be outcome determinative is not statutorily acceptable because it is a Revised Code requirement, not a reason. The applicant argues that the trial court must provide reasons as to how it applied the criterion in state law to its judgment.
Lash said the prosecution’s arguments in opposition cannot be used in place of a written explanation by the trial court for denying the application. According to Lash, that argument made by the prosecutor presumes that the trial court relied on the prosecutor’s responsive filing objecting to Lash’s DNA testing request since the court never provided its reasoning. Further, Lash asserts one party’s words cannot supplant an independent and thorough review of the record, which is required by the trial court.
Attorney General Files Brief, Will Argue Before Court
An amicus curiae brief supporting the prosecutor’s position was submitted by the Ohio Attorney General’s Office. The attorney general will also participate in oral argument, sharing the prosecutor’s time.
Friend-of-Court Brief Submitted
Additionally, the Ohio Innocence Project filed an amicus brief supporting Lash.
– Christine Holmes
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the State of Ohio from the Cuyahoga County Prosecutor’s Office: Owen Knapp, oknapp@prosecutor.cuyahogacounty.us
Representing Daverrick Lash: Joseph Patituce, attorneypatituce@patitucelaw.com
Representing the Ohio Attorney General’s Office: Mathura Sridharan, mathura.sridharan@ohioago.gov
Can Vehicle Buyers Appeal Order to Arbitrate Loan Dispute?
Credit Acceptance Corporation v. Gloria Beard et al., Case No. 2025-0246
Eighth District Court of Appeals (Cuyahoga County)
ISSUE: When parties agree in a contract to arbitration governed by the Federal Arbitration Act, is a state trial court order compelling arbitration a final order that can be appealed in state courts?
BACKGROUND:
In June 2022, Gloria and Jasmine Beard purchased a 2008 GMC Acadia from sales representative Eddie Chandler at Northcoast Auto Direct. The Beards financed the vehicle purchase over 46 months in a sales contract assigned to Credit Acceptance Corporation.
The contract contained an arbitration clause, which explained that disputes between Credit Acceptance and the Beards would be arbitrated. The clause stated, “This Arbitration Clause is governed by the FAA [Federal Arbitration Act] and not by any state arbitration law.”
The Beards didn’t make payments on the vehicle, maintaining there were undisclosed mechanical issues. The vehicle was repossessed and sold at an auction for less than its purchase amount, leaving a balance.
Credit Acceptance sued the Beards in May 2023 in Parma Municipal Court for the “deficiency balance” on the contract. The Beards filed counterclaims, and discovery and discussions of a settlement began.
After Filing Lawsuit, Creditor Asks Court to Order Arbitration
In January 2024, Credit Acceptance filed a request asking the municipal court to order arbitration. The court granted the motion, and the Beards appealed to the Eighth District Court of Appeals. The Beards argued that Credit Acceptance had waived its right to arbitrate because it had already sued in state court and the proceedings were ongoing. Credit Acceptance disagreed, asserting the appeal should be dismissed because the trial court’s decision compelling arbitration wasn’t a final order that could be appealed.
In October 2024, the Eighth District determined the parties had agreed that the FAA governed their arbitration rights and that act doesn’t permit appeals of orders to compel arbitration. The Eighth District found it had no jurisdiction over the appeal and dismissed it.
The Beards appealed to the Supreme Court of Ohio, which accepted the case.
Buyers Argue Ohio Law Allows Appeal of Order to Arbitrate
The Beards note that even though the FAA bars appeals of court orders compelling arbitration, an Ohio law, R.C. 2711.02(C), allows an immediate appeal of a trial court order granting a request to compel arbitration. A contract made in Ohio that contradicts state law is invalid, the Beards maintain. When the Ohio General Assembly enacted R.C. 2711.02, it established a clear public policy allowing immediate appeals, and that law should be upheld, the Beards argue.
They contend that if Credit Acceptance wanted to stop R.C. 2711.02 from applying, the creditor could have initiated arbitration proceedings instead of filing a lawsuit in the municipal court. Instead, after counterclaims were filed against the creditor and discovery began, Credit Acceptance defensively raised the issue of arbitration, the Beards allege. Pointing to a 2008 law journal study on arbitration clauses, the Beards maintain that corporations use the clauses not to benefit consumers or the justice system, but instead to discourage and defend against consumer claims, such as this one.
The Beards argue Ohio sets the rules for lawsuits initiated in state courts – even when an underlying contract incorporates the terms of the FAA. Nothing in the FAA suggests that it can preempt state law, the Beards conclude.
Creditor Contends Buyers Agreed to Have Federal Law Apply
Credit Acceptance counters that an Ohio statute, and the public policy reflected in it, don’t overcome the freedom of parties to enter a contract or overcome Congress’ intent when enacting the FAA. The creditor notes that the vehicle sales contract expressly excluded the application of any state law to the arbitration agreement. Parties can choose to have either federal or state arbitration laws apply to their agreements, and courts must then adhere to the parties’ intentions in the contract, the creditor argues.
Although it is accurate that a contract can’t contradict state law, the underlying state statute must first apply to the contract for the rule to apply, Credit Acceptance asserts. If Ohio law doesn’t apply to the arbitration, then the FAA’s governance over the arbitration agreement doesn’t violate the provisions of R.C. 2711.02, the creditor argues. It maintains that the FAA applies equally in state and federal courts, and just because the lawsuit was filed in state court doesn’t mean that federal law in the FAA can be ignored.
The creditor adds that it didn’t matter that the motion to compel arbitration was filed during the legal proceedings in municipal court. The contract stated, “Either You or We may require any Dispute to be arbitrated and may do so before or after a lawsuit has been started over the Dispute or with respect to other Disputes or counterclaims brought later in the lawsuit.” The Eighth District applied the FAA, which prohibits appeals of trial court orders compelling arbitration, and the Eighth District correctly dismissed this appeal, the creditor concludes.
Groups Supporting Each Side File Additional Briefs
Legal Aid of Southeast and Central Ohio filed an amicus curiae brief supporting the Beards. They contend there are inherent inequities in circumstances around signing arbitration agreements, which consumers now encounter nearly everywhere, including agreement for credit cards, cellphones, internet service, and vehicle purchases. Another amicus brief in support of the Beards was filed jointly by the National Consumer Law Center, National Association of Consumer Advocates, and Public Justice.
An amicus brief supporting the position of Credit Acceptance was submitted by the Ohio Chamber of Commerce and American Financial Services Association. They argue this case is about preserving Ohioans’ freedom and fundamental right to contract and to agree to arbitration clauses, which resolve disputes expeditiously.
Car Dealership and Sales Rep Won’t Argue Case
Other parties in the case, Northcoast Auto Direct and Chandler, didn’t file briefs in the case. They have waived oral argument and aren’t permitted to argue before the Supreme Court.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Gloria and Jasmine Beard from the Legal Aid Society of Cleveland: Matthew Alden, malden@lasclev.org
Representing Credit Acceptance Corporation: James Sandy, jsandy@mcglinchey.com
Disbarment Recommended for Attorney With Felony Convictions
Columbus Bar Association v. Javier H. Armengau, Case No. 2019-0500
Franklin County
Attorney Javier Armengau was convicted in July 2014 of one misdemeanor and eight felonies for offenses of rape, kidnapping, gross sexual imposition, and sexual battery. The crimes involved two clients and the mother of an adult client. Based on the felony convictions, the Supreme Court of Ohio in September 2014 placed Armengau on an interim suspension from practicing law.
Following an appeal of his convictions, the trial court resentenced Armengau to 13 years in prison.
In 2019, the Board of Professional Conduct recommended to the Supreme Court that Armengau be disbarred. He objected to the recommended sanction and asserted that he was wrongly convicted. At the time the board held its disciplinary hearing, Armengau had an appeal pending regarding his revised sentence. In April 2020, the Supreme Court returned the case to the board with instructions to put the disciplinary matter on hold until all of Armengau’s direct appeals of his convictions were concluded.
Board Reviews Disciplinary Case Again
Armengau was released from prison on Dec. 27, 2023. In April 2025, he and the Columbus Bar Association informed the board that all appeals were concluded, and the board lifted the stay in the case. In its order, the board explained that the parties wouldn’t be permitted to relitigate the findings and legal conclusions detailed in its report filed in April 2019. They would, however, be allowed to offer additional evidence on the aggravating and mitigating factors and to supplement the record with relevant Supreme Court case authority decided since April 2019.
After a hearing, the board filed a second report with the Court in October 2025. The report noted that while incarcerated, Armengau helped those in prison with many issues, including obtaining judicial release; overturning a conviction; obtaining reduced sentences; securing visitation or phone privileges with minor children; and assisting with GED preparation, learning Spanish, writing letters, and more. He accepted no payment for these services. After prison, he formed Armengau Consulting Unlimited. The company provides litigation support services to attorneys and pro bono services to people addicted to drugs. His LinkedIn profile described him as “Attorney/Paralegal.”
The board rejected bar association claims that Armengau violated Supreme Court orders prohibiting him from counseling or advising others or preparing legal documents. He helped and assisted others in prison, but there was no evidence indicating that the inmates were his clients or that he counseled or advised them in violation of the orders, the board found. The board did determine that Armengau violated the broader prohibition on “in any manner perform[ing] legal services for others,” and concluded it was an aggravating factor in the case.
The report also noted that Armengau is reimbursing the Lawyers’ Fund for Client Protection for $28,200 in funds lost by his former clients. He has reimbursed the fund $3,335. The board disagreed with the bar association’s suggestion that Armengau has been failing to make restitution. The board noted it is understandable that he has only paid about $3,000 given that he was imprisoned for almost 10 years, adding that he continues to pay into the client protection fund.
The board has again recommended his disbarment to the Court, pointing to the seriousness of Armengau’s criminal convictions, the vulnerability of the victims, and the need to protect the public from an attorney who has been convicted of rape and kidnapping.
Suspended Attorney Maintains His Innocence
Armengau objects to the board’s findings, legal conclusions, and recommended disbarment. Because of his objections, the Court must hear the case during oral arguments. He continues to maintain he is innocent of the crimes for which he was convicted. Anyone who has ever been exonerated was at one time convicted of a crime, despite their innocence, he notes.
Armengau also argues the board refused to consider significant evidence of mitigating circumstances, including 13 letters of support, passing a polygraph test, and his cooperation with the disciplinary process. He asserts in his brief that he “is not now, and has never been, a threat to the public.” He states that the three victims continued to have contact with him after the alleged assaults and that no other women he has interacted with since leaving prison have made any claims of impropriety or raised concerns.
He adds that he has served a suspension from practicing law for more than 11 years and that he has the moral qualifications to serve society and the courts as an attorney. He asks to be reinstated to the Ohio legal profession.
Bar Association Argues Convictions Have Been Reviewed and Upheld
The bar association states that Armengau’s claims of innocence have been reviewed and completely resolved. Although Armengau has the right to maintain his innocence, “the question of whether respondent has been rightly or wrongly convicted is one for the courts to determine in the normal course of legal proceedings. The courts have made that determination, and [Armengau] is guilty,” the bar association’s brief states. The association contends that his serious offenses warrant disbarment and the Court shouldn’t allow Armengau to attack his convictions through a disciplinary proceeding.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Javier H. Armengau, representing himself: armengau14@aol.com
Representing the Columbus Bar Association: Michael Loughry, mloughry@isaacwiles.com
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.