Tuesday, May 5, 2015
Jason Dean v. State of Ohio, Case no. 2011-2005
Clark County Common Pleas Court
James P. Kuhn v. Kelly L. Kuhn, now known as Cottle, Case no. 2014-0601
Fifth District Court of Appeals (Guernsey County)
Disciplinary Counsel v. Raymond T. Lee III, Case no. 2014-1744
Franklin County
Death Penalty
Jason Dean v. State of Ohio, Case no. 2011-2005
Clark County Common Pleas Court
Jason Dean is appealing his 2011 convictions and death sentence for murder, attempted murder, and other crimes.
During a four-day period in April 2005, Dean and Josh Wade, a minor at the time, were involved in a Springfield minimart shooting, a drive-by shooting, and the murder of Titus Arnold. In 2011, a jury found Dean guilty of attempting to murder two people in a car in the minimart parking lot, robbing the people in the car and robbing Arnold, attempting to murder four people during the drive-by shooting on Dibert Ave., and weapons charges. Dean was also convicted for Arnold’s murder as part of conduct involving efforts to kill two or more people and with prior calculation and design. The trial court sentenced Dean to death, and he appealed to the Ohio Supreme Court.
Dean’s attorneys have presented 15 claims of legal or procedural errors during Dean’s trial and ask the court to overturn his convictions, vacate his death sentence, or grant him a new trial.
Defendant’s Claims
Among the assertions Dean’s attorneys make in the brief to the court:
- They note that Dean wasn’t the principal offender because Wade’s shots killed Arnold. Wade didn’t receive the death penalty, and Dean’s attorneys contend that sentencing Dean to death is inappropriate and is disproportionate to Wade’s life sentence.
- They argue the state didn’t prove a course of conduct, prior calculation or design, a robbery in the minimart parking lot, the attempted murder of a person at the minimart shooting, or Dean’s participation in the shooting on Dibert Ave. They assert that testimony from Dean’s “estranged girlfriend” was critical to establishing Dean’s presence at the drive-by shooting and proving the prior calculation death specification for Arnold’s murder, but the girlfriend lacked credibility because she had repeatedly lied to police. They also maintain that the minimart shooting, Dibert Ave. shooting, and Arnold’s murder weren’t interrelated so no course of conduct was demonstrated.
- While deliberating, the jury asked whether it mattered if the victim identified in an attempted murder charge was the intended target. Dean’s attorneys describe “transferred intent” as the criminal liability for harming someone other than the person an offender originally intended to harm. Because the woman in the minimart parking lot and the four people shot at on Dibert Ave. weren’t harmed by the gunfire, transferred intent doesn’t apply, they maintain, pointing to other jurisdictions that reject the concept of transferred intent. They assert that the jury relied on an improper jury instruction about transferred intent in reaching its verdict.
State’s Arguments
For the state, attorneys from the Clark County Prosecutor’s Office provide these responses:
- They counter that Dean’s sentence shouldn’t be compared to Wade’s because Wade was ineligible for the death penalty as a juvenile. While Dean’s level of participation in Arnold’s murder is a mitigating factor, his attorneys argue the Ohio Supreme Court has concluded that a death sentence can still be appropriate when an offender is not the principal actor. They point out that the trial court in this case found Dean was “the central figure,” Dean and Wade planned the crime together, Dean gave Wade the gun used in the murder, and Dean tried to shoot Arnold but his gun didn’t fire.
- The attorneys maintain that the jury evaluated the credibility of Dean’s girlfriend along with other testimony and evidence, and concluded Dean was guilty of the charges. As the fact-finder, the jury should be given great deference, they assert. Dean’s girlfriend testified that she and Dean were in the car that Wade drove to the Dibert Ave. neighborhood where Wade and Dean shot at a house. The multiple crimes all involved Dean and Wade, with guns, in Springfield, over four days, which showed a course of conduct, the attorneys conclude.
- The state didn’t assert that any individual was a target of the gunfire at the minimart or the house shootings. The prosecutors maintain that the jury instruction came straight from the Ohio Jury Instructions and was a correct statement of law. The doctrine of transferred intent is well established in state law and was properly applied in this case, they argue.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Jason Dean: Kathleen McGarry, 505.757.3989
Representing the State of Ohio from the Clark County Prosecutor’s Office: David Wilson, 937.521.1770
Must Signing Bonus from Oil and Gas Lease Be Divided in Divorce?
James P. Kuhn v. Kelly L. Kuhn, now known as Cottle, Case no. 2014-0601
Fifth District Court of Appeals (Guernsey County)
ISSUES:
- Is income generated from an oil and gas lease entered into after marriage on property owned by one spouse before marriage “active income” subject to division between spouses in a divorce or “passive income,” which doesn’t have to be divided?
- Does a spouse’s signature on a real estate document create an ownership interest in the real estate or in any proceeds stemming from the real estate?
BACKGROUND:
James Kuhn bought about 24 acres of land, including the Cambridge property’s mineral rights in 2001. James refinanced the mortgage in 2002 to borrow additional funds to build a house on the property. In 2007, after James and Kelly were dating, Kelly paid off more than $18,000 on a home equity line of credit that James had taken as well as $80,000 toward the mortgage. The two married in May 2007.
In October 2011, the Kuhns signed an oil and gas lease, which included a signing bonus of $121,285 plus a 20 percent royalty on any oil and gas retrieved from the property. The couple received the bonus in February 2012.
On March 19, 2012, James filed for divorce in Guernsey County.
Division of Bonus and Royalties Unresolved
In the divorce, James reimbursed Kelly for her property investments. The Kuhns resolved their issues except whether to divide the signing bonus and whether rights to future royalties on the land. In March 2013, a magistrate ruled that the property belonged to James and that the signing bonus and future royalties were also his property.
Kelly appealed to the Fifth District Court of Appeals, which concluded that any future royalties belonged to James. However, the Fifth District determined the signing bonus was income received during the marriage and had to be divided between them.
James appealed the decision about the bonus to the Ohio Supreme Court, which agreed to hear the case.
Husband’s Contentions
Attorneys for James assert that the signing bonus is “passive income,” which is defined in state law as “income acquired other than as a result of the labor, monetary, or in-kind contribution of either spouse.” Because James never transferred any interest in the property to Kelly and because he reimbursed her for the money she paid on the mortgage, the property was not converted from a premarital asset to marital property that must be split between them, the attorneys argue. They contend that the bonus was passive income because the couple did nothing to generate it.
Stressing that James owned the property independent of Kelly, they maintain that Kelly’s signature on the oil and gas lease was simply recognition of a right to the money and estate if James died while they were married. This right is referred to as a “dower interest.”
Wife’s Assertions
Attorneys for Kelly respond that she invested significantly in the property before and during the marriage, and the signing bonus stems from the property. They contend that “active income,” which must be divided in a divorce, is defined in state law as income that results from either party’s labor, money, or in-kind contributions that increases the property’s value.
They note that the couple researched oil and gas issues in the area, attended many meetings, and jointly negotiated the lease terms. Kelly also researched title and other related issues before they signed the lease, her attorneys add.
They argue Ohio law states that marital property is not determined by who owns the property’s title. James’ reimbursement to Kelly for her contributions to the mortgages was part of an agreement that if she left the house her rights in the division of the signing bonus and royalties would not be affected, they maintain.
They emphasize that Kelly has clear rights because she co-signed the oil and gas lease and the documents don’t limit her rights to only a dower interest.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing James P. Kuhn: Stephanie Mitchell, 740.432.6322
Representing Kelly L. Cottle (formerly Kuhn): Robert Fox, 330.253.2227
Attorney Discipline
Disciplinary Counsel v. Raymond T. Lee III, Case no. 2014-1744
Franklin County
In late 2014, the Board of Commissioners on Grievances and Discipline recommended that attorney Raymond T. Lee III of Dublin, Ohio, be indefinitely suspended from practicing law in the state. (The state attorney disciplinary board is now called the Board of Professional Conduct.)
The board found that Lee had established an attorney-client relationship with a teacher who had been a member of a union for which Lee handled disciplinary and other legal matters. As the teacher’s attorney, Lee didn’t act on her behalf and failed to communicate with her, the board determined. The board also concluded that Lee wasn’t cooperative in the disciplinary proceedings, according to its report to the Ohio Supreme Court.
Lee has been suspended four times for failing to register with the Ohio Supreme Court. In December 2010, he was suspended from practicing law because he didn’t complete his continuing education requirements, and he has not been reinstated.
Background
Lee is paid a monthly fee to manage disciplinary cases involving members of the Federal Education Association, a union for teachers in the U.S. Department of Defense’s school system. Patricia Buhl taught at an elementary school in Fort Knox, Kentucky. A fired aide who had worked in Buhl’s classroom alleged in spring 2007 that Buhl had physically abused a student, and an investigation was conducted.
That summer, Buhl’s husband, who serves in the Army, was transferred to the Marshall Islands, and they moved. In August, the Army decided not to prosecute the child abuse case, but the investigative report was forwarded to Kentucky’s Education Professional Standards Board, which informed Buhl that it was going to check into the claim. Buhl contacted the union and Lee for assistance, which they provided. She formally resigned from her job in October 2007.
In late November, the education board gave Buhl a chance to respond to the misconduct allegation, and Buhl notified the union and Lee. Buhl drafted a response, and Lee and staff at the union reviewed the reply and made suggestions. The attorney submitted the response to the education board for Buhl and indicated that he and the union’s general counsel would prepare and submit a lawyer supplement. The supplemental material was never sent.
While waiting for a hearing date, Lee told Buhl in early 2008 they would review any charges and take appropriate action. When the teacher contacted Lee to check on the case status in fall 2008 and summer 2009, the attorney didn’t respond.
In 2010, an attorney for the education board also tried to reach Lee about the case, but he didn’t return her calls. An education board hearing officer ultimately, in March 2011, recommended an order of default. That day, Lee contacted the education board’s lawyer and Buhl. Lee and the board lawyer agreed to request a new hearing date and work on a settlement, and Lee updated Buhl. However, Lee took no further action.
On May 16, 2011, the Kentucky education board permanently revoked Buhl’s teaching certificate. She didn’t find out about the action until November because the education board repeatedly sent correspondence to her old Kentucky address and because Lee didn’t respond to her email requests for case updates.
When Buhl hired a new attorney later that month, she and the new lawyer requested her case file, and Lee never provided it.
Attorney’s Objections
Lee contends that he was retained by the union and that he only represented Buhl as a union lawyer in connection with her federal employment. In addition, this disciplinary complaint is governed by federal labor laws and not subject to state law, he asserts. He also maintains that he didn’t agree to represent Buhl as an individual and that no attorney-client relationship was created. He notes that he even communicated to Buhl and the education board in 2011 that as an out-of-state attorney he could only represent her before the Kentucky board if he received permission.
He argues that he responded to all inquiries from the Disciplinary Counsel that were delivered to him. However, some correspondence was never received, he maintains.
Answer from Disciplinary Counsel
The disciplinary counsel responds that Lee took an oath in Ohio to abide by the professional conduct rules in the state and, as an Ohio lawyer, he is subject to the state’s disciplinary authority regardless of where the conduct takes place. Lee’s claimed immunity as a lawyer for a federal union doesn’t apply to this disciplinary matter because it isn’t a labor dispute, the disciplinary counsel adds.
Lee also advised Buhl on the case, explained the process, offered to submit materials for her, and told her he would continue to represent her if she resigned from teaching job following her move, counsel argues. Counsel asserts that Lee never clarified any limits in representing Buhl, so she reasonably believed Lee was her lawyer.
After detailing Lee’s responses and lack of responses to efforts to reach and receive feedback from him, the disciplinary counsel concluded that he wasn’t cooperative in the disciplinary process.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the Office of Disciplinary Counsel: Scott Drexel, 614.461.0256
Raymond T. Lee III, pro se: 614.598.7563
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