Court News Ohio
Court News Ohio
Court News Ohio

Tuesday, March 10, 2020

State of Ohio v. Anthony Kiriland, Case no. 2018-1265
Hamilton County Court of Common Pleas

Malieka Evans v. Akron General Medical Center, et al., Case no. 2019-0284
Ninth District Court of Appeals (Summit County)

State of Ohio/Village of Put-in-Bay v. Mark Mathys and State of Ohio/Village of Put-in-Bay v. Islander Inn (Timothy Niese, Sr.), Case no. 2019-0324
Sixth District Court of Appeals (Ottawa County)

Cincinnati Man Sentenced to Death Raises Issues with Mitigation Retrial

State of Ohio v. Anthony Kirkland, Case No. 2018-1265
Hamilton County Common Pleas Court

Anthony Kirkland was convicted in 2010 for the murders of two women and two teen girls in Cincinnati. In 2016, following a U.S. Supreme Court ruling, the Ohio Supreme Court sent Kirkland’s case back to the Hamilton County trial court to conduct the mitigation and sentencing phases of his trial again.

A new jury recommended death, and the trial court imposed that sentence in August 2018. Because Kirkland was sentenced to death, he is entitled to an automatic appeal to the Ohio Supreme Court.

Cincinnati Man Sentenced in Four Murders
In 2010, Kirkland pled guilty to the murders and the abuse of the corpses of two women – Mary Jo Newton and Kimya Rolison. Kirkland went to trial on murder and other charges involving the deaths of 13-year-old Esme K. and 14-year-old Casonya C. The jury found Kirkland guilty, and the court sentenced him to death for the murders of the teen girls, and to 70 years to life for the murders of Newton and Rolison.

In its 2014 ruling on Kirkland’s initial appeal, the Ohio Supreme Court stated that the Hamilton County prosecutor’s comments during part of the trial were improper and prejudicial. However, the Supreme Court conducted its independent evaluation of the sentence and determined that death was appropriate.

Kirkland asked the Court in March 2016 for a new sentencing hearing. His motion stated that when the Court decided his appeal in 2014, it didn’t have the benefit of the U.S. Supreme Court’s decision in Hurst v. Florida, which was issued in early 2016. According to Kirkland’s motion, Hurst determined that a death sentence must be based on a jury’s verdict, not a judge’s factfinding. Kirkland argued that the Ohio Supreme Court’s finding concluding he was prejudiced by the prosecutor’s misconduct couldn’t be remedied by the Court’s independent evaluation of his death sentence. The Court granted Kirkland’s motion in May 2016 and remanded the case to the trial court for new mitigation and sentencing proceedings.

Mitigation and Sentencing Retrial Takes Place in 2018
The new proceedings were held in the summer of 2018, and a new jury was selected. The parties agreed that the jury had to accept the guilty verdicts from the original trial. The new jury was tasked with considering the sentences for the counts that involved the aggravated murders of Esme K. and Casonya C. Those counts included the possibility of a death sentence.

The jury recommended the death sentence on those counts, and the trial court imposed that sentence. In Kirkland’s automatic appeal, the Ohio Supreme Court will consider 11 legal arguments.

Jury Questioning and Removals Related to Death Penalty Positions Debated
Kirkland challenges the jury selection in the new proceedings. He asked for sequestered individual questioning of potential jurors who had expressed strong positions either way on the death penalty, but the trial court denied the request, and the potential jurors were questioned in groups. Kirkland’s brief argues that manner of questioning caused a “group think” effect, which allowed the jurors to repeat a position other jurors made that prompted an excusal.

Kirkland also maintains that potential jurors who indicated they could follow the law even though they opposed the death penalty were excused, while potential jurors prone to imposing death automatically remained on the jury. This approach to jury selection had a “chilling effect” and denied him a fair and impartial jury, his brief argues.

The Hamilton County Prosecutor’s Office notes that 12 in the group questioned about their strong death penalty positions said their opposition to the death penalty would prevent them from following the law, and three said the death penalty should be automatic when someone commits murder. Pointing to these different answers during questioning, the prosecutor contends that no “group think” occurred.

The prosecutor states that the trial court removed for cause all jurors who made clear they couldn’t follow the law given their beliefs in favor of or in opposition to the death penalty.

Parties Disagree on Impact of Jury Questionnaire Cover Sheet
Kirkland also contests information on the cover sheet of the jury questionnaires given to the potential jurors. The cover sheet stated that the questionnaires may be subject to review by the media or others under public records law, but that personal identifiers wouldn’t be released. Kirkland argues this warning discouraged the full and open disclosure needed from potential jurors in their answers on the questionnaire.

The prosecutor contends that the two points read together reassured jurors that their identities wouldn’t be connected to their questionnaires if released. The office notes that the cover sheet information was crafted in response to an appellate court decision on the topic. The language aligned with the ruling, and the judge’s goal of informing potential jurors that their identities wouldn’t be revealed actually protected Kirkland’s due process rights, the prosecutor maintains.

Views Differ on Evidence Allowed
Kirkland maintains that the trial court shouldn’t have permitted the state to introduce “extraordinarily gruesome evidence” about Newton’s and Rolison’s murders. Those non-capital counts weren’t part of the remand, Kirkland argues. Instead, the “gruesome” evidence was intended to “inflame the jury and create substantial unfair prejudice,” his brief states.

The prosecutor counters the evidence was necessary to prove the death-penalty specifications that the teens’ murders were part of a course of conduct that included the murders of Newton and Rolison.

Other Issues Discussed in Briefs
Kirkland and the prosecutor also present arguments about the prosecutor’s statements again in these new proceedings as well as about autopsy photographs, jury instructions, the stun cuff Kirkland had to wear in the courtroom, the effectiveness of his trial counsel, and the weighing of the mitigating and aggravating circumstances.

Kathleen Maloney

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

Representing Anthony Kirkland: Timothy McKenna, 513.381.7111

Representing the State of Ohio from the Hamilton County Prosecutor’s Office: Ronald Springman Jr., 513.946.3052

Return to top

Must Assault Victim Sue Doctor First to Pursue Negligence Lawsuit against Hospital?

Malieka Evans v. Akron General Medical Center et al., Case No. 2019-0284
Ninth District Court of Appeals (Summit County)


  • Must an employee be found liable for a tort or guilty of a crime before a plaintiff can sue an employer for negligent hiring, supervision, or retention of the employee?
  • Is the statute of limitations for initiating a lawsuit against an employer for negligent hiring, supervision, or retention limited to the statute of limitations governing the employee’s alleged misconduct?

The case has drawn statewide interest from organizations representing medical professionals and employers as well as from lawyers representing employees and personal-injury-victim advocates, which submitted amicus curiae briefs. The parties dispute the meaning of the Ohio Supreme Court’s 1988 Strock v. Presnell decision, which stated that “an underlying requirement in actions for negligent supervision and negligent training is that the employee is individually liable for a tort or guilty of a claimed wrong against a third person, who then seeks recovery against the employer.”

The employer groups maintain the decision means there must be a judgment against the employee before the employer can be sued. The employee advocates state a judgment against the offending employee isn’t necessary as long as there are grounds to pursue the employee’s wrongdoing.

In November 2012, Malieka Evans went to the Akron General Medical Center emergency room seeking relief from the pain suffered from an accident. Evans was placed in a bed in the emergency department and changed into a hospital gown. After she was administered narcotic medication, Dr. Amir Shahideh entered the exam room and closed the door. Evans claims Shahideh removed her gown and sexually assaulted her, and that none of the doctor’s acts were related to any medical purpose.

Immediately after the incident, Evans filed a criminal complaint against Shahideh with the Akron Police Department. Shahideh wasn’t charged with a crime. Evans didn’t bring a civil lawsuit against Shahideh for assault or battery within the one-year statute of limitations governing those types of civil claims.

Shahideh was employed by General Emergency Medical Specialists (GEMS), which placed him and other physicians in Akron General’s emergency room as independent contractors. Exactly two years after the incident, Evans filed a lawsuit against Akron General Medical Center and GEMS for failing to supervise, and for negligently retaining Shahideh. As a result, she was sexually abused, assaulted, and battered, she claims. She didn’t include Shahideh as a party in her lawsuit against GEMS or Akron General.

Citing the Strock decision, the hospital and GEMS asked the trial court for summary judgment, arguing that since Shahideh wasn’t found liable for a tort or convicted of a crime, the employers can’t be held liable for negligently hiring or supervising him. The trial court dismissed GEMS from the lawsuit because Evans failed to properly notify the company of the case. The court granted the hospital’s summary judgment request.

Appeals Court Reverses Decision
Evans appealed the decision to the Ninth District Court of Appeals, which agreed that GEMS should no longer be part of the case. The appellate court reversed the trial court’s decision pertaining to the hospital, finding that while Evans missed the deadline to civilly sue Shahideh, the 20-year statute of limitations on rape hadn’t expired, and that under Strock, the trial court couldn’t rule out the possibility that Shahideh could be found guilty of a crime.

The appeals court also questioned whether the language in the Strock decision stating an employee must be “guilty of a claimed wrong” means the employee actually must be convicted of a crime before a lawsuit against the employer can be filed.

In response to the Ninth District directive that the case proceed in trial court, the hospital argued that Evans should have to wait to see if Akron police will pursue a criminal charge against the doctor and convict him before she could file her lawsuit. To facilitate an appeal of the Ninth District’s decision to the Supreme Court, Evans stipulated that she would agree to the police investigation being closed and that she would have no expectation the criminal case would be reopened.

The hospital appealed the Ninth District decision and also noted the courts interpretation of Strock conflicts with a Third District Court of Appeals decision. The Ninth District agreed to certify the conflict to the Supreme Court.

The Supreme Court agreed to hear both the hospital’s challenge and the conflict. The Court consolidated the cases for both oral arguments and a decision.

Employee’s Wrong Must Trigger Employer’s Responsibility, Hospital Argues
Akron General explains that the claim of negligent hiring, retention, or supervision finds that an employer is liable for its own inaction in light of a crime or tort committed by its employee. The hospital argues it then follows that before an employer can be held liable, a plaintiff must prove the incompetent employee committed a tort or crime that injured the plaintiff, and that the employer knew or had reason to know of the employee’s incompetency.

For Evans to have a claim against the hospital, she had to prove that Shahideh, an independent contractor, committed the torts of assault or battery, or was convicted of a crime, and that the hospital knew or should have known that Shahideh was likely to commit such acts, the hospital argues. Because Evans declined to pursue a civil lawsuit within the one-year statute of limitations, she is barred from proving that the doctor is liable for his acts, the hospital maintains. And because the criminal investigation is closed, Evans won’t be able to prove the doctor is guilty of a crime, Akron General adds. The precedent of the Stock decision means that Evans can’t hold the hospital liable for its hiring or supervision of Shahideh if she hasn’t proved that the doctor did anything wrong, the hospital concludes.

The hospital argues that Evans wants the benefit of alleging an assault occurred without having to prove it and that the law requires an independent finding of negligence by the employee before the employer can be held responsible. Akron General takes issue with the Ninth District’s interpretation of Strock when the appeals court noted the Supreme Court used “guilty of a claimed wrong” without the words “found” or “crime.” The Ninth District concluded that without those words, there is a difference between Evans having a credible case against Shahideh and having to pursue a criminal case against him as a prerequisite to suing the hospital.

Akron General notes the plain and customary meaning of the terms “liable” and “guilt” are legal determinations made after an adjudication. The hospital argues that lower courts and federal courts have interpreted Strock to mean that charges had to be pursued against the employee and resolved before the employer can be held liable.

Time for Filing Lawsuit Shortened by Failing to Name Doctor in Lawsuit, Hospital Argues
Akron General claims that by not suing the doctor individually within the one-year statute of limitations, Evans is essentially attempting to prove her claims of his assault and battery through the lawsuit against the hospital. By using this strategy, she is attempting to extend the deadline to file a lawsuit from one year under the battery-claim standard to the two-year statute of limitations for filing a negligent hiring and supervision lawsuit, the hospital asserts. If the doctor isn’t part of the case against the hospital, Akron General argues that statute of limitations should match that of battery claims, and that Evans needed to file her suit against the hospital within a year of the incident.

Hospital Misinterprets Ruling to Escape Responsibility, Patient Argues
Evans notes the wording in Strock states that Evans must prove the doctor is “individually liable for a tort or guilty of a claimed wrong,” and that Akron General reads into the decision the word “adjudication.” The patient claims the hospital is reading one sentence of the decision in a vacuum, and that holding would broadly expand the protections for employers that the Supreme Court never intended.

Evans asserts that if she is allowed to continue her lawsuit against the hospital, she will have to prove that the doctor did commit the tort of a battery or assault, or commit a crime, before the trial court could even consider holding the hospital liable. She argues the hospital also is misinterpreting the claim of negligent hiring and supervision as claim of respondeat superior, in which an employer is held legally responsible for its employee’s misbehavior. Negligent hiring and supervision are direct claims against the hospital for its own misbehavior, independent of the doctor’s, she maintains. Citing the Ohio Supreme Court’s 2014 Simpkins v. Grace Brethren Church of Delaware decision, Evans notes the Court found that negligent hiring and supervision are separate and distinct theories from respondeat superior, and an employer can be held independently liable for its oversight of employees.

The patient argues she was free to pursue claims against the hospital without pursuing the doctor, and the cases Akron General cited where courts used Strock to dismiss lawsuits against a company are ones where a lower court determined the employee wasn’t liable. That is different from her case, Evans maintains, and at no point has the hospital ever tried to dispute that Shahideh sexually assaulted her in the emergency room. She concludes that if she proves the doctor’s conduct was wrongful then she can sue the hospital for its failure to prevent the wrongful behavior.

Friend-of-the-Court Briefs
Amicus briefs in support of Akron General have been submitted by Ohio Association of Civil Trial Attorneys, Ohio Management Lawyers Association, and Academy of Medicine of Cleveland & Northern Ohio.

Amicus briefs in support of Evans were filed by Ohio Association for Justice and Ohio Employment Lawyers Association.

Doctor’s Employer Unable to Participate in Oral Argument
GEMS, which was dismissed from the case by the trial court, did not file a merit brief with the Supreme Court and isn’t permitted to participate in oral arguments.

Dan Trevas

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

Representing Akron General Medical Center et al.: Brian Sullivan, 216.687.1311

Representing Malieka Evans: Konrad Kircher, 513.229.7996

Return to top

Can Island Village Impose Tax on Rental Cars, Horse-Drawn Carriages, Bicycles?

State of Ohio/Village of Put-in-Bay v. Mark Mathys and Islander Inn, Case No. 2019-0324
Sixth District Court of Appeals (Ottawa County)


  • Because the state charges a fee to license all motor vehicles used on public roadways, does a municipal tax on motorized, horse-driven, and manpowered vehicles-for-hire violate state law?
  • Does a municipal tax on vehicles-for-hire violate Article XII, Section 5a of the Ohio Constitution because the funds collected from the tax are not expended solely for a statutory purpose?

In 1995, the island municipality of Put-in-Bay imposed a vehicle-for-hire tax on any “horse-driven, taxicabs, pedicabs, bicycles, self-powered trams, rental motor vehicles, or towed tram car/units” used in the village. In 2014, the Islander Inn, its owner, and Mark Mathys failed to pay the tax for vehicles they owned. The village charged them with violating Section 858.01, the village’s vehicle-for-hire tax ordinance.

Mathys and the inn asked the Ottawa County trial court to dismiss the case, arguing the tax was unconstitutional. The trial court agreed, and the village appealed the decision to the Sixth District Court of Appeals. In 2019, the Sixth District reversed the trial court’s decision, citing its 2005 S.B. Carts, Inc. v. Village of Put-in-Bay decision, which rejected a constitutional challenge to the village’s tax.

The tax opponents appealed the Sixth District’s decision to the Ohio Supreme Court, which agreed to hear the case.

Only State-Authorized ‘Piggyback” License Fee Allowed, Opponents Argue
The tax opponents argue that Put-in-Bay claims the tax is a “business tax” on companies and individuals who receive payment for renting or transporting people around the village in vehicles. But those vehicles “operate on public roadways,” and if the village is authorized to tax some vehicles, then it implies it has the right to tax all vehicles that operate on public roads, the opponents maintain. The Ohio Constitution and R.C. 4504.06 both prohibit municipalities from independently taxing vehicles using public roads, they claim. R.C. 4504.06 provides a comprehensive scheme for licensing motor vehicles, the opponents argue, which allows anyone with an Ohio license to drive on public roadways, even those in Put-in-Bay, they explain. And the law allows cities and counties to impose $5 “piggyback” taxes on top of the state fee for licensing a vehicle, they note.

The tax opponents cite the Ohio Supreme Court’s 1925 Firestone v. Cambridge decision, which ruled municipalities can’t levy taxes on vehicle owners in addition to taxes levied by the state for similar purposes. They argue that despite the village’s labeling the fee a business tax of a restricted class of vehicles, it functions as a tax on those vehicles in the same way as the state motor vehicle license. If municipalities could add fees to the operation of vehicles in any form they wish, then it would render the whole piggyback scheme in R.C. 4504.06 irrelevant, which isn’t what the state has intended, they argue.

The opponents also note that Article XII, Section 5a of the Ohio Constitution requires “no moneys” derived from the taxation of vehicles shall be expended for any purpose except for statutory purposes spelled out in the article. Put-in-Bay initiated the tax through the passage of an ordinance, and any money raised from the taxation of vehicles would be expended for purposes stated in the ordinance. Only the General Assembly can create statutory laws in Ohio, meaning none of the village tax funds would be spent as directed by state law, and that makes it illegal, the opponents argue.

Tax Permitted by Home Rule Authority, Village Argues
Put-in-Bay notes the vehicle-for-hire tax has twice been affirmed by the Sixth District as a permissible exercise of the village’s home-rule authority guaranteed by the Ohio Constitution. The village notes the opponents’ reliance on the Firestone decision is misplaced, and the Ohio Supreme Court has subsequently ruled in cases that make Firestone inapplicable to the village’s tax.

In its 1998 Cincinnati Bell Tel. Co. v. City of Cincinnati decision, the Supreme Court ruled that state lawmakers only can limit the taxing authorities of municipalities by an “express act,” the village notes. The village explains that in response to the Court’s decision, the legislature enacted R.C. 715.013, which contains several items on which the state imposes taxes and expressly forbids additional local taxation. Put-in-Bay notes R.C. Chapter 4504 isn’t included and nothing prevents the city from enacting a tax on providers of transportation.

The village also argues its tax is not a tax on all motor vehicles, but only vehicles – motorized, horse-drawn, or manpowered – that are leased out by businesses or businesses and hired to transport people. The tax isn’t related to the operation of a motor vehicle and isn’t restricted by any state law.

Constitution Doesn’t Limit Tax, Village Argues
The village notes a 1956 Ohio Supreme Court decision, Garrett v. Cincinnati, clarified how Article XII, Section 5a applies to municipal taxation. The decision ruled the section is a limitation only on the use of state-imposed fees and taxes, and doesn’t apply to taxes imposed by municipalities. The provision doesn’t prevent the village from imposing the tax on businesses, the village concludes.

Dan Trevas

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

Representing Mark Mathys and Islander Inn: Andrew Mayle, 419.334.8377

Representing State of Ohio/Village of Put-in-Bay: Susan Keating Anderson, 216.928.2936

Return to top