Court News Ohio
Court News Ohio
Court News Ohio

Wednesday, April 20, 2016

Donald Caster v. City of Columbus, Ohio, and Kimberly Jacobs, Chief, Columbus Division of Police, Case no. 2014-1621

Matthew Aalim v. State of Ohio, Case no. 2015-0677
Second District Court of Appeals (Montgomery County)

State of Ohio v. Demetrius Jones, Case no. 2015-1427
Eighth District Court of Appeals (Cuyahoga County)

Are Police Records Public Records Once Suspect’s Trial Concludes?

Donald Caster v. City of Columbus, Ohio, and Kimberly Jacobs, Chief, Columbus Division of Police, Case no. 2014-1621

ISSUE:  Can a public office deny a public records request for “confidential law enforcement investigatory records” in a criminal case file until the criminal defendant has been acquitted, released from prison, or dies?

The Ohio Supreme Court is considering a writ of mandamus filed by Donald Caster, an attorney working for the Ohio Innocence Project (OIP), which is a program of the University of Cincinnati College of Law. In September 2013, Caster filed a public records request under R.C. 149.43, known as the Ohio Public Records Act, with the city of Columbus and its police chief, Kimberly Jacobs, seeking to review the criminal case file of Adam Saleh. Saleh, who was convicted in 2007 of the murder of Julie Popovich, claims he’s innocent, and sought out OIP for its assistance. Neither Caster nor OIP represent Saleh, but they sought the files to determine if Saleh’s claim warranted their investigation.

Columbus refused to release the criminal file, citing the Ohio Supreme Court’s 1994 State ex rel. Steckman v. Jackson decision and noting the material Caster sought was “confidential law enforcement investigatory records” (CLEIR), which are exempt from disclosure by the public records law. Caster renewed his request in October 2013 and was again refused access. A month later Caster revised his request noting that all of Saleh’s direct appeals of his conviction were exhausted in 2009, but the city again denied the records.

In September 2014, Caster filed a writ of mandamus asking the Supreme Court to compel the city to release the case file, and 32 days later the city provided some records from Saleh’s case including missing person investigatory forms, the Franklin County’s coroner’s report, newspaper articles, press releases, and subpoenas. The rest of the case file was withheld, with the city restating its position that it was general policy not to release criminal case files regarding major crimes until the death or release of the defendant. As part of the CLEIR exemption, the city cited a subset of records known as “specific investigatory work product,” and it considered other files off limits by the “trial preparation record” exemption.

The Supreme Court agreed to hear oral arguments from Caster and the city to determine if a writ should be granted.

Caster Suggests Records Review Necessary to Exonerate Innocent
Caster notes the city adopted the policy to claim major criminal case files were exempt in 2010, but before then it routinely made the information public to individuals and organizations investigating wrongful convictions. In some cases wrongfully convicted prisoners were released based on the evidence obtained solely through public record requests. Caster calls for the Supreme Court to overrule its Steckman decision, noting that changes in criminal discovery rules and other legal developments have eliminated the valid reasons for withholding criminal case file records.

The Court in Steckman determined the discovery rules for criminal cases, not the Ohio Public Records Act, should determine the scope of public access to records. Caster explains at the time of the ruling, the Court noted criminal defendants and inmates had limited access to the information they could request from police and prosecutors that were in their investigatory files. The Court raised a concern that defendants and inmates were trying to circumvent the discovery rule by making public records requests to get information they weren’t entitled to under the discovery rules, such as witness statements and investigative reports. His brief explains that the Court was concerned about this use of the public records law for three reasons: (1) disputes over public records would delay prosecutions, (2) the danger of witness intimidation, and (3) the prospect of an imbalance in the information prosecutors and defense attorneys could obtain from each other.

In 2010, the Court revised Criminal Rule 16 to allow for “open discovery,” which broadly expanded the amount of materials a criminal defendant could request from the state while on trial or during an appeal, and the rule allowed the state to obtain more information than in the past from defense attorneys. Castor argues the change in rule essentially eliminates the concerns police have about their criminal files, asserting that both the discovery rule and the public records law continue to contain ways to protect against potential witness intimidation.

Additionally, Caster noted the Court’s 2013 State v. Athon decision added the requirement that if a defendant tries to use the public records act to access information, it automatically triggers the discovery requirement opening the defendant’s files for greater inspection by the prosecutor. Caster also explains the Athon decision stated that nothing in Criminal Rule 16 prevents defendants or anyone else from using the Ohio Public Records Act to seek information and that the public is entitled to the same records that criminal defendants can obtain.

With the change, Caster now argues that decisions by police departments to deny record requests for the case files means defendants on trial or appealing their convictions have more access to the information than the public or convicts whose trials have long ended.

Caster also insists the blanket denial of investigatory records violates the open records law because to use the CLEIR exemption, the city has to examine each record to prove they fit in the category, and that the release would create a high risk of disclosing four areas of sensitive information lawmakers deemed could be kept confidential. He charged the city’s blanket denials conceals information that doesn’t meet the standards required by the law and should be released.

City Argues It Is Following Law
Columbus in its brief argues that Steckman is the current law, and that the police chief followed the law by denying the records request and citing the CLEIR exemption as the reason. The city maintains the bulk of what Caster seeks are deemed specific investigatory work product that include the personal notes, working papers, memoranda, evidentiary findings, and other materials compiled for a homicide prosecution. Citing the Court’s 1997 State ex rel. WHIO-TV-7 v. Lowe decision, the city maintains the Court announced the availability of criminal records through the discovery process doesn’t overcome the “work product” exemption.

The city also asserts that when the Court changed Rule 16 to open up discovery, the legislature didn’t amend the public records law to change any portion of the specific investigatory work product exemption.

“There is no indication that the legislature concluded the revision of the criminal discovery rules eliminated the need for the ‘specific investigatory work product’ exemption, or more narrowly, that the revision of Rule 16 eliminated the need for the specific investigatory work product exception at the conclusion of a direct appeal of a criminal conviction,” states the city’s brief.

The city argues there is no time limit in the law and that it is reasonable to keep the information confidential until a defendant’s appeal process is completely over. Because defendants can seek postconviction relief, the city maintains those appeals can last until the person has been acquitted, released from prison, or dies.

The city also argues that making the records available to defendants isn’t the same as opening them up to complete public inspection because trial court judges, prosecutors, and defense counsel have important roles in using their discretion with the information to ensure fair trials and the safety of witnesses. The city notes that even with “open discovery” a prosecutor can still designate some sensitive material in the case files as “counsel only,” which means the accused’s attorney can review the material, but can’t show it to the client.

“Ohio’s criminal discovery rules recognize the need to protect defendants, victims, and society at large in connection with the criminal discovery process in a particular criminal trial,” the city’s brief states. “Unlike the criminal discovery process, the procedure for responding to public records pursuant to R.C. 149.43 does not provide for oversight by a trial judge.”

Friend-of-the-Court Briefs
An amicus curiae brief supporting Caster’s position has been submitted by the Ohio Coalition for Open Government, whose members include Ohio newspapers, broadcasters, and citizens interested in informing the public about the actions of government offices.

The group notes the CLEIR exemption is discretionary and law enforcement agencies release information to the public when they want help, such as trying to catch a wanted suspect. The group argues the only real justification for the exemption is to prevent a criminal investigation from being compromised, but once the investigation concludes the record should be public. The group asserts the change in Rule 16 now means the person the investigatory exemption was designed to keep the information from – the suspect charged with violating the law – has full access the records.

“Rule 16 forces the prosecutor to disclose that information to the charged suspect, who then is free to disclose it to others who may have been complicit, but not apprehended or charged. To that extent, the investigation has been compromised. At that point, the true purpose underlying the investigatory records exemption also is compromised, and so, evaporates,” the brief states.

The Innocence Network also filed an amicus brief supporting Caster, and notes the group has worked across the nation using public records to exonerate the wrongfully convicted and lead to the conviction of the true perpetrators. The group states public record access plays a vital role in screening cases, and in Ohio, the OIP received 8,000 inmate requests for assistance and has taken on fewer than 30.

“To date, OIP has helped release twenty-two individuals on grounds of innocence. Combined, these innocents served more than 380 years in prison. Access to public records is essential to this screening process, resulting in OIP’s ability to prioritize meritorious cases,” the brief states.

- Dan Trevas

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

Representing Donald Caster: Frederick Gittes, 614.222.4735

Representing the City of Columbus and Police Chief Kimberly Jacobs: Richard Pfeiffer Jr., 614.645.0808

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Is Law Mandating Transfer of Certain Juveniles to Adult Court Unconstitutional?

Matthew Aalim v. State of Ohio, Case no. 2015-0677
Second District Court of Appeals (Montgomery County)


  • Does the mandatory transfer of juveniles to the common pleas court pursuant to R.C. 2152.10(A)(2)(b) and R.C. 2152.12(A) violate their constitutional right to due process?
  • Does the mandatory transfer of juveniles to common pleas court pursuant to the same laws violate their constitutional right to equal protection under the law?

In November 2013, two women were approached by Matthew Aalim, who threatened them with a loaded gun, and stole money and a cell phone. The case against him was brought in the juvenile court in Montgomery County because he was 16 years old. The state alerted the court that Aalim’s case should be moved out of juvenile court to the common pleas court to try him as an adult on criminal charges. After considering the relevant state laws, the juvenile court agreed and transferred the case in January 2014.

Aalim pled no contest to two counts of aggravated robbery, and the state dismissed two specifications for using a gun. On May 7, 2014, the court sentenced him to four years in prison.

The juvenile appealed to the Second District Court of Appeals, which agreed with the trial court’s decision and rejected his claims that various constitutional rights had been violated because of the mandatory transfer of his case from juvenile to common pleas court.

Aalim filed an appeal with Ohio Supreme Court, which agreed to consider his case.

Juvenile’s Arguments
Aalim explains that specific provisions in R.C. 2152.10 and R.C. 2152.12 require juvenile courts to transfer a case to the common pleas court to try a minor as an adult if the juvenile is 16 or 17 years old and probable cause exists that he or she committed a certain offenses with a firearm. In Aalim’s view, the statutes violate his right to due process because the juvenile court judge isn’t permitted under the laws to make a determination about whether a transfer is appropriate based on the individual child and circumstances of each case. The juvenile court is improperly limited to considering only the factors listed in the statutes, he asserts.

Citing State v. D.H., a 2009 Ohio Supreme Court ruling, Aalim argues it’s a juvenile judge’s responsibility to decide whether each minor would be receptive to rehabilitation in the juvenile justice system or whether transfer for possible punishment in a criminal court may be needed for the community’s safety. Each child is entitled to a full investigation by the court of him or her as an individual and of the facts of the case to ensure a meaningful review before transferring the matter out of juvenile court, he maintains.

In addition, Aalim contends the statutes prohibit the juvenile court from evaluating his age as a mitigating circumstance. Because the laws require the court to transfer certain cases involving 16- and 17-year-olds to the common pleas court, he asserts the laws treat age instead as an aggravating factors. By not allowing a judge to consider the minor’s age and the role that plays in his or her actions, the statutes again infringe on juveniles’ due process rights, he states. He maintains that several recent U.S. Supreme Court decisions involving minors support a consideration of youth and related characteristics at every stage of a juvenile’s case.

Aalim also claims the mandatory transfer statutes violate the constitutional rights of juveniles to equal protection under the law. Certain 16- and 17-year-olds who are required by law to have their cases heard in common pleas court for their alleged offenses aren’t provided the full and individualized review of their circumstances that other minors are given who are subject to discretionary transfer by the juvenile courts. Besides treating juveniles differently based only on their ages, the state has no evidence or rational basis for making this distinction among minors, Aalim contends.

He points to the parts of the statutes where juvenile court judges can decide, using their own judgment about specific circumstances, whether to transfer a case to the common pleas court.

“Under Ohio’s discretionary transfer statutes, juvenile courts must engage in meaningful consideration of a child’s risk and future dangerousness, which includes a physical and mental examination, a detailed inquiry into the child’s background, and a determination as to whether the child is amenable to the care and rehabilitation of the juvenile court,” Aalim writes in his brief to the Court. The factors are weighed in an “amenability hearing.” These procedures should be used in every case where the juvenile court is deciding whether to transfer a minor’s case to the common pleas court, he concludes.

Prosecutor’s Positions
The Montgomery County prosecutor responds that Aalim’s liberty isn’t deprived by transferring his case from juvenile to common pleas court. The law simply changes the forum where the case is heard, and no substantive or fundamental rights are affected, so Aalim’s due process protections haven’t been infringed on, the prosecutor maintains.

He notes Ohio’s mandatory-transfer statutes have withstood due process challenges in eight of the state’s appellate districts, and similar mandatory-transfer laws have been upheld in other states. Due process requires an opportunity to be heard at a meaningful time in a meaningful manner, he explains. In his view, an amenability hearing before any transfer of a juvenile to common pleas court to be tried as an adult isn’t a fundamental right and doesn’t violate due process for minors.

And when a juvenile meets the statutory criteria for a mandatory transfer, the prosecutor notes the legislature doesn’t require the juvenile court to review the statutory factors considered in cases in which the court has the discretion to transfer minors. The different process for handling older juveniles accused of committing particular offenses doesn’t hold them to a higher standard of culpability than other juveniles, the prosecutor asserts.

He also maintains courts do consider youth as one mitigating factor when sentencing juveniles. He adds that the U.S. Supreme Court decisions cited by Aalim involved the punishment of minors, not the mandatory transfer of a juvenile’s case to common pleas court for criminal prosecution.

He then argues the transfers required in R.C. 2152.10 and R.C. 2152.12 are rationally related to the government’s interest in protecting citizens from serious, and possibly violent, offenders and in cutting down on juvenile violent crime. Because a rational basis exists for the mandatory-transfer provisions, the laws don’t deprive older juveniles accused of certain crimes from equal protection when they are transferred, he states. Pointing to the Ohio Supreme Court’s 2000 ruling in State v. Hanning, the prosecutor contends in his brief that “the mandatory transfer of certain juveniles to adult court based upon the age of the offender and the nature and circumstances of his or her offense is a legitimate ‘special measure’ undertaken by the General Assembly for dealing with older and violent offenders.”

The statutes aren’t unconstitutional, he concludes, stressing that any change to the law for such policy reasons needs to be made through the legislature.

Other Organizations Weigh In
Several groups have filed amicus curiae briefs in support of Aalim’s position. In one of the briefs, submitted collectively by the Children’s Law Center, the League of Women Voters, public defender’s offices in three counties, and six other organizations, the groups contend many national and state stakeholders oppose mandatory-transfer laws for juveniles and the laws haven’t resulted in the intended outcomes. For example, they note, such laws don’t reduce the number of repeat juvenile offenders and don’t serve to deter crime. Two youth-oriented advocacy organizations – the Juvenile Law Center and the National Juvenile Defender Center – also filed a combined amicus brief supporting Aalim.

The Ohio Attorney General’s Office has submitted a brief supporting the Montgomery County Prosecutor’s Office. The attorney general views Aalim’s arguments as policy positions that belong in the legislative arena. Due process rights don’t include a right to have a case heard in juvenile court or to have an amenability hearing before transfer to the common pleas court, the attorney general asserts. And, like the Cuyahoga County prosecutor, the attorney general points to protecting the public as a rational basis for the mandatory-transfer provisions when concluding the statutes don’t violate equal protection rights.

Court Lengthens Oral Argument Time
On April 11, 2016, the Court granted a request by the attorney general to participate in oral argument of this case. The attorney general has been given 5 minutes of time, while the Montgomery County prosecutor still has 15 minutes to present its positions. Aalim’s time has been extended to 20 minutes.

- Kathleen Maloney

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

Representing Matthew Aalim: Amanda Powell, 614.466.5394

Representing the State of Ohio from the Montgomery County Prosecutor’s Office: Andrew French, 937.225.5757

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Did Defendant’s Indictment Nearly 20 Years After Alleged Rape Deprive Him of Fair Trial?

State of Ohio v. Demetrius Jones, Case no. 2015-1427
Eighth District Court of Appeals (Cuyahoga County)


  • Are the reasons for a delay in prosecution ever evidence of actual prejudice to the defendant when the person is indicted within the statute of limitations for the alleged offense?
  • To win dismissal of a case because of the delay between the time of the crime and an indictment, must a defendant first present evidence to establish substantial and actual prejudice, meaning the defendant provided specific and non-speculative proof that the lost evidence or testimony indicated he or she didn’t commit the crime?

A woman identified as S.W. reported to Cleveland police on Sept. 1, 1993, that she had been raped. S.W. alleged she had visited the home of an acquaintance, Demetrius Jones, and, when she decided to leave, Jones locked her in his bedroom and raped her. She said she screamed and fought, some of her clothing was torn, and Jones held a knife to her throat. She stated Jones’ mother and brother were in the home at the time.

After contacting police, S.W. was sent to the hospital. A rape kit was collected, but no photos were taken. A detective reported he was unable to locate S.W. again at her residence two days later and three days after that. He noted the address as “bad,” and closed the case.

A DNA sample was taken from Jones in connection with another criminal matter in 2005 or 2006. In 2011, Jones’ mother died and the rape kit from 1993 was submitted for testing. On Aug. 30, 2013, the day before the 20-year statute of limitations for rape expired, Jones was indicted for rape and kidnapping in the 1993 incident.

Jones said he was interviewed by police in 1993 and told them he and S.W. had consensual sex. The state maintained the police never talked with Jones during the original investigation.

Defendant’s Case Dismissed
In December 2013, Jones filed a motion to dismiss the case because of the state’s delay in indicting him, which he argued was unconstitutional. He pointed to the loss of evidence and police records, and to the death of his mother, who would’ve been called to testify. The trial court agreed, and the case was dismissed with prejudice. The court concluded that Jones’ defense was limited because no clothing or photos were collected and Jones’ mother could no longer be a witness.

The Cuyahoga County prosecutor appealed, and the Eighth District Court of Appeals met en banc to review the case. In a 7-4 vote on July 16, 2015, the appellate court agreed with the trial court’s dismissal of the case.

One of the cases the Eighth District cited was State v. Luck, a 1984 Ohio Supreme Court decision. According to the appeals court, the Supreme Court adopted a two-part test in Luck for evaluating due process challenges based on “pre-indictment delay,” which refers to the time between an alleged crime and an indictment. First, the defendant has to show actual prejudice that affected his fair trial rights resulted from the delay and, if prejudice is established, then the court must consider the state’s reasons for the delay. The Eighth District opinion stated that the Supreme Court didn’t examine the claim of prejudice based on whether unavailable evidence or testimony from a deceased witness would have revealed the accused didn’t commit the crime, which is what the prosecutor argued was the appropriate standard.

In Jones’ case, the appeals court noted that S.W. identified Jones as her attacker in her police statement, the police minimally looked into the allegations and didn’t gather relevant evidence, and no additional information was discovered between the allegation and the indictment. Based on “due process and fundamental justice,” the Eighth District concluded Jones was prejudiced by the almost 20-year delay in prosecuting him.

The Eighth District determined that its decision conflicted with another state appeals court, but the Ohio Supreme Court ruled there was no conflict. However, the Court accepted the prosecutor’s appeal.

Prosecutor Argues Defendant’s Case Not Impeded by Delay
The Cuyahoga County prosecutor asserts the Eighth District has created a new standard for reviewing lawsuits alleging pre-indictment delay – one involving “concepts of due process and fundamental fairness.” This standard, the prosecutor contends, ignores Ohio Supreme Court rulings, including Luck, on this issue.

“According to precedent established by this Court, the defendant bears the initial burden of proof to demonstrate actual prejudice based on lost evidence,” the prosecutor writes in his brief to the Court. “If the defendant satisfies his initial burden of proof, then and only then does the reviewing court evaluate whether the State was justified in delaying prosecution.”

In his view, the appeals court’s decision undermines the state legislature’s intent when enacting the 20-year, and now longer, statute of limitations in rape cases. The appeals court ruling now permits a court to dismiss a case before the end of the statute of limitations based on whether the state had good reasons for delaying prosecution, the prosecutor maintains.

“Such a standard largely ignores the issue of whether the defendant has demonstrated without speculation that the basic facts of the case have been obscured due to the passage of time,” he writes.

The appeals court’s standard is subjective and fails to require proof of actual prejudice, he argues. Instead, he asserts, a defendant must offer specific and non-speculative proof that lost evidence or testimony would’ve been exculpatory.

Citing the Ohio Supreme Court’s decision in State v. Adams (2015), the prosecutor states Jones only speculates about what testimony his mother would have given and hasn’t shown specific proof how the lack of evidence would have impaired his defense. Concluding that the case shouldn’t have been dismissed, the prosecutor adds the Court’s decisions on these issues and the standard to apply will be critically important to hundreds of cases stemming from recent DNA testing of old rape kits and expected to be prosecuted in the next few years.

Accused Asserts No New Evidence Found to Support Indictment 20 Years Later
Jones counters that the due process clauses of the federal and state constitutions ensure protection against delayed prosecution in more ways than through a statute of limitations. Demonstrating actual prejudice can also support a challenge to pre-indictment delay, he maintains.

Jones cites another Eighth District ruling, released the same year as his case decision, that clarified the appeals court hadn’t abandoned the actual prejudice standard by evaluating pre-indictment delay claims in terms of due process and fundamental justice. The appeals court stated the Jones analysis “was unremarkable because due process, upon which all claims of preindictment delay are based, is concerned with ‘fundamental conceptions of justice which lie at the base of our civil and political institutions,’” quoting a 1977 U.S. Supreme Court decision (United States v. Lovasco).

In reviewing Adams, Jones responds that the claim of prejudice there failed because the dead witness had actually implicated the defendant, so no prejudice against the accused’s right to a fair trial could be shown.

Jones also analyzes Luck, where he notes the death of a key witness and the loss of all witness statements and interviews led the Court to conclude there had been actual prejudice. When examining the second part of the Luck test – the state’s reasons for waiting 15 years to indict the defendant – the Court wrote delays are unjustifiable “when the state, through negligence or error in judgment, effectively ceases the active investigation of a case, but later decides to commence prosecution upon the same evidence that was available to it at the time that its active investigation was ceased.”

Actual prejudice that prevents the possibility of a fair trial is proven when evidence or information from witnesses is lost because of the state’s delay in beginning prosecution, Jones argues. Noting the state began pursuing his case again after it got a hit from a DNA database, Jones points out the information gave prosecutors nothing more than they had in 1993. Jones had been named by S.W. in 1993 as her alleged rapist. His identity wasn’t in question, he notes.

He also agrees with the state that it’s unknown what the evidence would’ve shown in his case. However, he points to the “utter indolence” and “abysmal failure” of the Cleveland police when “investigating” the allegations, noting the police took no photographs at his home, didn’t collect S.W.’s clothes as evidence, never interviewed his mother, and closed the case after only five days.

He has been deprived of all evidence for his defense, and the state’s unjustified delay in prosecuting him has denied him the right to a fair trial, Jones argues. Also highlighting the numerous rape kits from Cleveland yet to be tested, he stresses the importance of the decision in this case and asks the Court to affirm the Eighth District’s judgment.

Multiple Groups File Additional Briefs on Issues
The Ohio Attorney General’s Office and the Ohio Prosecuting Attorneys Association have filed separate amicus curiae briefs supporting the Cuyahoga County prosecutor’s position in this case. Also supporting the prosecutor in a collective brief are the following organizations:

  • Joyful Heart Foundation
  • AEquitas: The Prosecutors’ Resource on Violence Against Women
  • Rape Abuse Incest National Network
  • Ohio Alliance to End Sexual Violence
  • National Alliance to End Sexual Violence

In support of Jones, the Cuyahoga County Public Defender and Cuyahoga Criminal Defense Lawyers Association have submitted an amicus brief, as have the Ohio Public Defender’s Office and the Ohio Association of Criminal Defense Lawyers.

Oral Argument Time Divided

On April 11, 2016, the Court agreed to allow the attorney general to share the 15 minutes of argument time with the Cuyahoga County prosecutor.

- 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: Brett Hammond, 216.443.7800

Representing Demetrius Jones: Russell Bensing, 216.632.9161

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

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