Tuesday, September 16, 2025
State of Ohio v. Marquece A. Simmons, Case Nos. 2024-1187 and 2024-1301
Second District Court of Appeals (Montgomery County)
Constantine Bitounis et al. v. Interactive Brokers LLC et al., Case No. 2024-1290
Eighth District Court of Appeals (Cuyahoga County)
729 West 130th Street LLC et al. v. Hinckley Township Board of Zoning Appeals, Case No. 2024-1419
Ninth District Court of Appeals (Medina County)
Dayton Bar Association v. Christine M. Baker, Case No. 2025-0791
Montgomery County
Was Force Required for Rape Conviction Proven in Assault of Sleeping College Student?
State of Ohio v. Marquece A. Simmons, Case Nos. 2024-1187 and 2024-1301
Second District Court of Appeals (Montgomery County)
ISSUES:
- Is evidence of the force used to manipulate a sleeping victim’s clothing to facilitate sexual conduct sufficient to establish rape under R.C. 2907.02(A)(2), which prohibits sexual conduct with another “when the offender purposely compels the other person to submit by force or threat of force”?
- Should a sleeping person who is sexually assaulted be given the same protections as sleeping minors or adults who are taken by surprise by an assault?
BACKGROUND:
In April 2023, M.H., a University of Dayton senior, went out with her roommates and friends to the bars on a Friday night. Her roommates and a roommate’s boyfriend returned to their house before M.H. did. She stayed out longer and headed home around 3:30 a.m. While still in her clothes worn that evening, M.H. went to sleep on the living room couch. She covered herself with a blue crocheted blanket.
Later that morning, she reported to police that she woke up while sleeping on the couch and felt someone touching her in her genital area. She jolted up and saw a man she didn’t recognize sitting next to her on the couch. She said she frantically asked the man who he was and how he had gotten into their house. She told him to get out of the house, and he left.
Police officers were given footage from the home security camera set up on the house front porch. The footage showed a man, later identified as Marquece Simmons, who approached the front door with a food delivery service bag and entered the house at 4:43 a.m. He left nine minutes later. Simmons told police he went to the house to drop off marijuana to a guy.
Accused Intruder Charged With Burglary, Rape, and Sexual Battery
Simmons was indicted for aggravated burglary, rape in violation of R.C. 2907.02(A)(2), and sexual battery in violation of R.C. 2907.03(A)(3).
The rape charge made against Simmons prohibits “engag[ing] in sexual conduct with another when the offender purposely compels the other person to submit by force or threat of force.”
The sexual battery offense prohibits engaging in, or causing someone to engage in, sexual activity with the offender when “[t]he offender knows that the other person … submits because the other person is unaware that the act is being committed.”
In August 2023, Simmons’ two-day trial was held before a jury in Montgomery County Common Pleas Court. The Montgomery County prosecutor argued Simmons had to use force to move aside M.H.’s underwear, and perhaps move her body and the blanket, to engage in the sexual conduct with his fingers that constituted rape. The jury found Simmons guilty on all three counts. The court merged the counts and sentenced Simmons on the rape offense to four-to-six years in prison. He was designated a tier III sex offender.
Appeals Court Overturns Rape Conviction
Simmons appealed to the Second District Court of Appeals, which vacated the rape conviction. The Second District stated that rape under R.C. 2907.02(A)(2) requires that the force used must further the sexual conduct by compelling the victim to submit to the force or overcome the victim’s will. However, a sleeping victim can’t be compelled to submit by force or threat of force, because they are unaware that the assault is occurring, the appeals court ruled.
The Second District cited aligned decisions by the Third, Fourth, and Fifth District Courts of Appeals. The Second District also noted that its decision conflicted with an Eighth District Court of Appeals ruling.
The Supreme Court of Ohio agreed to review the conflict among the appellate courts. The prosecutor also appealed to the Supreme Court, which accepted the case. The Court consolidated the two cases.
State Argues Offender Compelled Sleeping Victim To Submit by Force
The Montgomery County Prosecutor’s Office contends that Simmons compelled M.H. to submit to sexual conduct by removing her blanket and moving her clothes while she slept. Simmons’ arguments mistake a sleeping victim’s lack of awareness as being unable to submit to sexual conduct through force, the prosecutor maintains. The prosecutor argues that this conclusion – that a sleeping person isn’t compelled to submit through force – essentially conveys that the sleeping person consents to the actions of a person who sexually assaults them.
The Eighth District determined in State v. Clark, a 2008 ruling that conflicts with the Second District decision, that when a victim is sleeping and unaware of the defendant’s intentions, “only minimal force is necessary to facilitate the act.” The prosecutor agrees with the Eighth District reasoning.
The prosecutor also maintains that prior case law involving child victims is relevant. In rape cases with child victims, courts have determined that force can be established by showing the victim’s will was overcome by fear or duress. The prosecutor maintains that the line of cases should be extended, as the Eighth District did in Clark, to include sleeping adults because minimal force also facilitates the sexual conduct with a sleeping adult.
The prosecutor also stresses that the question of force should be left to the jury to decide. Jurors are in the best position to resolve questions about the facts and evaluate witness credibility, the prosecutor maintains.
The prosecutor adds that when determining the level of force required for a rape offense, it’s important to consider the relation between M.H., who was a sleeping and unaware victim, and Simmons, a burglar and a stranger. M.H. was taken off guard by Simmons, and his actions overcame her will as she slept – which meets the elements of rape under R.C. 2907.02(A)(2), the prosecutor argues.
Offender Maintains That State Didn’t Prove Offense That It Charged
In response, Simmons’ brief states that other statutes besides the rape statute he was charged with protect unaware victims who experience sexual assault. Another section of the rape statute, in division (A)(1)(c), prohibits sexual conduct when a person’s ability to resist or consent is substantially impaired. However, the brief notes, the prosecutor chose to charge Simmons under a rape law that requires proof that he purposely compelled M.H. to submit by force or threat of force.
The brief adds that Simmons was found guilty of sexual battery under R.C. 2907.03(A)(3), which involves an unaware victim. If Simmons’ case returns to the trial court for a new sentencing hearing as the Second District ordered, he will still be subject to a prison term up to five years for sexual battery and lifetime registration as a tier III sex offender, the brief explains.
Regarding the appeals court conflicting cases, Simmons argues the decisions by the Second, Third, Fourth, and Fifth districts correctly recognize that R.C. 2907.02(A)(2) doesn’t apply to sleeping adult victims because they have no will that a defendant can overcome by force. He contends that the Eighth District and the prosecutor in this case fail to focus on whether force was used to compel, not commit or facilitate, the sexual conduct. Moving a victim’s clothing isn’t sufficient to establish that a defendant purposefully compelled a person to submit by force or threat of force, Simmons maintains.
He also rejects the prosecutor’s argument that protections given to sleeping minors or adults who are taken by surprise by a sexual assault “should” be extended to any sleeping person who is sexually assaulted. Simmons counters that “should” is a question for the General Assembly, not the Supreme Court. The General Assembly defined a rape offense in division (A)(2) for cases in which defendants use force to compel. And, Simmons notes, the General Assembly also has provided protections to sleeping and unaware victims – in division (A)(1)(c) of the rape statute (substantially impaired victim) and in the sexual battery statute, R.C. 2907.03(A)(3) (unaware victim). The Court should decline the prosecutor’s invitation to legislate from the bench, Simmons concludes.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket (2024-1187 and 2024-1301).
Contacts
Representing the State of Ohio from the Montgomery County Prosecutor’s Office: Michael Allen, allenm@mcohio.org
Representing Marquece A. Simmons from the Ohio Public Defender’s Office: Stephen Hardwick, stephen.hardwick@opd.ohio.gov
Did Brokerage Aid Investor Who Lost $25 Million in Risky Trades?
Constantine Bitounis et al. v. Interactive Brokers LLC et al., Case No. 2024-1290
Eighth District Court of Appeals (Cuyahoga County)
ISSUE: Can a brokerage firm be held liable for investment losses under R.C. 1707.43 for failing to oversee risky practices of an investor using the brokerage firm’s online platform?
BACKGROUND:
In 2013, 20-year-old Constantine Antonas approached friends and neighbors from northeast Ohio’s Greek Orthodox community with a new investment opportunity. He offered to sell them interests in the Epitome Investment Fund, a hedge fund organized as a limited partnership. Antonas would direct the fund’s investments as the general manager. Antonas presented the potential investors with a Private Placement Memorandum, a formal document typically used to create hedge funds. The document named Interactive Brokers as the hedge fund’s brokerage service. Interactive Brokerage bills itself as the third-largest online brokerage service in the United States, with more than 3 million accounts.
By 2021, Antonas had obtained nearly $25 million from his investors and made security trades through Interactive Brokers. He reported to the partners in 2021 that the fund had grown to $78 million. In reality, Antonas was losing money through risky trades and making withdrawals from the fund for personal use. When Antonas issued the $78 million statement, the fund only had $600.
Investors became suspicious and set up a meeting with Antonas in October 2021. Antonas was found dead the day of the meeting.
Constantine Bitounis and 20 other individuals and businesses who had invested with Antonas filed a lawsuit against Interactive Brokers in Cuyahoga County Common Pleas Court. The investors claimed the brokerage was liable for the losses under the Ohio Securities Act, which is R.C. Chapter 1707. The investors claimed Interactive Brokers violated R.C. 1707.43 by participating in and aiding Antonas in the illegal sale of securities.
Interactive Brokers requested summary judgment, arguing it did nothing but process trades in the ordinary course of business as it did with all of its 3 million customers. It argued it didn’t violate the law because it had no role in Antonas’ sale of the securities to the Epitome Fund investors. The trial court agreed and granted summary judgment.
The investors appealed to the Eighth District Court of Appeals. In a 2-1 decision, the appeals court remanded the case to the trial court, ordering further proceedings to determine whether Interactive Brokers’ actions could constitute participating in or aiding in the hedge fund sales.
The brokerage appealed to the Supreme Court of Ohio, which agreed to hear the case.
Law Doesn’t Hold Firm Liable for Losses, Brokerage Asserts
Laws regulating the sale of securities are generally known as “Blue Sky Laws.” Ohio has one of the oldest Blue Sky Laws in the nation, Interactive Brokerage explains. R.C. 1707.43 provides two limited remedies to investors who are the victims of “unlawful sales” of securities, the firm explains, and the Ohio law has generally been about the same since the 1930s. A victim can seek to have the sale voided and end ownership in the security. The other is to receive back the amount the investor paid for the security.
The payback option is available from either the seller or any person who has “participated in or aided the seller in any in making such sale.” Interactive Brokers denied that it had any role participating in or aiding Antonas in selling the Epitome funds to the investors. The Eighth District and the investors focused on the portion of R.C. 1797.43 holding a company liable for participating in or aiding the seller, the company notes. The court fails to mention that this provision applies to the participation in and aiding in the sale of securities, Interactive Brokers notes, and that the company had no role at that stage. If it failed to meet any obligation to investors, that failure happened after the sale, and the law doesn’t apply in that case, the company argues.
While the brokerage may be faulted for not flagging some of Antonas’ risky actions, and that lack of oversight might have aided Antonas in his quest to defraud his investors, none of the firm’s actions involved the sale of securities, the brokerage asserts. The firm acts as an intermediary, allowing traders to place orders and exchanges in financial markets. The allegations that it failed to engage in monitoring and compliance with the service’s rules do not equate to a violation of the Blue Sky Laws, the firm asserts. The company explains there must be a “nexus” tying the activities of the brokerage to the sales of securities by Antonas to its investors to hold Interactive Brokers liable for the losses. The company maintains it had no more than a passive role of allowing transactions on its platform. It did nothing at the sales stage to promote the sale of Epitome ownership to investors, and didn’t assist Antonas in any way in the sale.
Brokerage Responsible for Losses, Investors Assert
Interactive Brokerage’s lack of due diligence and repeated failures to detect illegal activity on its platform by Antonas falls squarely under R.C. 1797.43 and allows the company to be held liable, the investors assert. The investors note that the law broadly defines “securities,” “participating,” and “aiding” a seller because of the ever-changing forms of financial investments and fraudulent schemes. The use of Interactive Brokers' name in the memo to investors helped Antonas set up the phony fund in the first place, the investors assert. When Antonas first filed for the account, his documentation was riddled with errors, some of which the brokerage noted, but they did nothing to stop it, the investors maintain. The prestige of the firm’s name in the documents helped lure investors, and the firm’s lack of effort to ensure Antonas was legitimate demonstrates that the firm aided in the sale of the illegal securities, the investors maintain.
In addition, as Antonas was reporting successful outcomes to investors and as the brokerage was earning fees on trades made by Antonas, the firm was allowing Antonas to engage in risky behavior, the investors claim. In 2017, Antonas was able to withdraw $3.2 million from the fund for personal use. Interactive Brokers flagged the withdrawal because it exceeded the account limits, yet Interactive Brokers allowed it, the investors assert. Interactive Brokers continually ignored red flags until it conducted an audit of Antonas' account in June 2021, when only $7,874 of the investors’ money remained, the investors argue.
The statute is written broadly to hold many entities in the securities world accountable for illegal sales, the investors note. However, the law also intentionally provides a narrow amount of remedies for security buyers, the investors maintain. The law only allows a security purchase to be voided and for the amount of the investment money to be returned, along with attorney fees paid to enforce the law, the group notes. It doesn’t allow those who aid in the illegal sales to be sued for damages or interest in the lost funds, the investors note. Interactive Brokers aided Antonas and should have to pay the funds back to the investors, they maintain.
Friend-of-the-Court Briefs Submitted
An amicus curiae brief supporting Interactive Brokers' position was submitted jointly by the Securities Industry and Financial Markets Association and the Ohio Bankers League. The Public Investors Advocate Bar Association filed an amicus brief supporting Bitounis and the other investors.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Constantine Bitounis et al.: David Meyer, dmeyer@meyerwilson.com
Representing Interactive Brokers LLC: James Saywell, jsaywell@jonesday.com
Could Zoning Inspector’s Email Regarding Tavern’s Property Use Be Appealed?
729 West 130th Street LLC et al. v. Hinckley Township Board of Zoning Appeals, Case No. 2024-1419
Ninth District Court of Appeals (Medina County)
ISSUE: Does an email from a zoning inspector communicating a determination about the allowable use of an owner’s property qualify as a decision that can be appealed?
BACKGROUND:
The property located at 729 West 130th Street in Hinckley Township is owned by a limited liability company called 729 West 130th Street and by Brent Rumes. The tavern Adult Day Care Center was operated on the property, which is located in a residential district. The tavern had a liquor license and, because it wasn’t a residence, operated as a non-conforming use under the township zoning regulations and state law.
The Ohio Bureau of Liquor Control and Records contacted the Hinckley Township Zoning Office in January 2022, informing the office that the property lost its liquor license in January 2019.
On March 4, 2022, Rumes and Tom Syms, the managing member of the 729 West 130th Street company, visited the zoning office. They were considering selling the property and asked about information they heard that they couldn’t continue the business at the location. They said they spoke to a secretary in the office during the visit.
Zoning Officer Email States Owners Could No Longer Operate Tavern on Property
Several days later, on March 15, the township zoning inspector, Thomas Wilson, sent an email to Rumes. It stated that the property hadn’t been used as a tavern for more than two years, constituting voluntary abandonment under local and state law. The property was no longer permitted to operate as a non-conforming use in the residential area, the email explained. The zoning inspector also spoke with Rumes on the phone. In early April, an attorney for the owners wrote to the inspector that the owners never received a written order or written notice that they weren’t in compliance with township regulations. In response, the township provided a copy of the March 15 email.
On April 15, the property owners filed an appeal with the Hinckley Township Board of Zoning Appeals (BZA). After holding a hearing, the BZA ruled the appeal was untimely because it was filed more than 20 days after the zoning inspector’s decision. The BZA found it had no jurisdiction to consider the appeal because of the late filing.
In June 2022, the property owners appealed the board decision to the Medina County Common Pleas Court. They argued the inspector’s email wasn’t a decision, so it couldn’t be appealed. The court found that state law doesn’t prohibit the email from being considered a decision, which is appealable. The court also determined that Rumes received proper notice of the decision. The court agreed with the BZA’s dismissal based on the appeal being filed after the 20-day deadline.
The property owners appealed to the Ninth District Court of Appeals, which in September 2024 vacated the trial court's decision. The appeals court determined that the email wasn’t a zoning office decision and, as a result, couldn’t be appealed. Because the 20-day filing deadline wasn’t activated, the trial court had no authority to consider the case, the Ninth District ruled.
The BZA appealed to the Supreme Court of Ohio, which accepted the case.
Board Argues Email Was Decision and Was Appealable
The BZA notes that R.C. 2506.01, which addresses appeals from administrative agencies, states that a “final order, adjudication, or decision” of an officer or a board may be reviewed by a common pleas court. Under state law, a “decision” is something that “determines the rights, duties, privileges, benefits, or legal relationships of a person ….” The BZA argues the email to the property owners was a decision, because it was the inspector’s determination about the property owners’ rights. Because it was a decision, it could be appealed, the BZA states.
A zoning inspector’s job is to enforce the township zoning regulations. The BZA maintains that Wilson’s March 15 email to the property owners was to enforce the township zoning laws regarding non-conforming uses of properties and voluntary abandonment.
The BZA contends that Rumes was on notice of the decision from the email, his discussion of the email with the inspector that day, and a discussion with Syms a few weeks later. There was no zoning violation to inform Rumes about, as he asserts, because at that time the business hadn’t been operating at all for approximately three years, the board maintains.
The board believes the Supreme Court needs to offer legal guidance on the issue because emails addressing zoning issues are likely sent across the state regularly. If email notices don’t qualify as decisions, then property owners have no recourse to challenge them, the BZA concludes.
Owners Counter That Inspector Lacked Authority To Make Decision
The property owners maintain in their brief that it’s easy to agree generally with the BZA’s broad principle – that zoning inspector determinations can be appealed – but there are “many important qualifications, requirements and caveats” that must be examined to resolve this case.
The zoning inspector’s “observation” that the property no longer qualified as a non-conforming use in the township isn’t a decision that the zoning laws allow the inspector to make, the brief contends. It argues that nothing in the zoning code authorizes the inspector to unilaterally determine that a legal non-conforming use of a property no longer qualifies for that use.
In addition, the use of email to notify property owners of an appealable decision “falls far short of satisfying the requirement of ‘sufficient notice’ under the due process clauses of the U.S. and Ohio Constitutions,” the property owners assert.
They acknowledge that R.C. 519.15 allows an aggrieved party to appeal a decision within 20 days after the decision. In this case, however, the property is owned by multiple unrelated parties and the zoning inspector failed to notify the 729 West 130th Street company and Syms of the decision, the owners argue. They contend that Syms’ visit to the zoning office didn’t notify him of the determination because he and Rumes didn’t speak to the inspector. Nor was the phone call between the inspector and Rumes an acceptable form of sufficient notice under state law, they maintain.
The owners have waived participation at oral arguments 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 Hinckley Township Board of Zoning Appeals from the Medina County Prosecutor’s Office: Stefanie Zaranec, szaranec@medinaco.org
Representing Brent A. Rumes and 729 West 130th Street LLC: William Muniak, wmuniak@medina-legal.com
Suspension Sought for Attorney for Her Responses to Misdirected Mobile Payment
Dayton Bar Association v. Christine M. Baker, Case No. 2025-0791
Montgomery County
The Board of Professional Conduct recommends that the Supreme Court of Ohio suspend a Kettering attorney for one year, with six months stayed with conditions, for her actions following a misdirected mobile payment to a man with the same name as her husband.
The Dayton Bar Association filed a complaint against Christine Baker, alleging she violated several professional conduct rules, including conduct that adversely reflects on her fitness to practice law. Baker objected to the board’s findings and recommended sanction, which triggered an
oral argument before the Supreme Court.
Transfer Made to Wrong Zelle Account
According to the board report, in September 2023, Baker made two payments using the Zelle mobile payment system totaling $550 to a Chase bank account linked to the email address of Zachary Reynolds of Downers Grove, Illinois. Baker’s husband is also named Zachary Reynolds, and his email address differs slightly from Reynolds of Illinois. Reynolds of Illinois is married to a woman also named Christine, who is a fifth-grade teacher.
Reynolds of Illinois had linked his Chase account to a Charles Schwab investment account. When he noticed the unexpected Zelle deposits, he contacted the bank and Schwab. He was instructed not to touch the funds and to allow Schwab’s fraud department to investigate. He was also instructed not to return the money independently.
Reynolds verified with his wife that they didn’t know the sender, and filed a formal fraud dispute with Schwab two days after receiving the funds. The board reported that a couple of days after sending the funds, Baker discovered the funds did not appear in the intended account. She then researched and learned that the transfer went to Reynolds in Illinois.
The board reported that Baker made multiple communications to Reynolds through various channels seeking the return of the funds. She sent an email indicating she was an attorney and would use all available recovery methods to regain the funds. She sent a text message to Reynolds repeating her requests and a message through LinkedIn from an account using the pseudonym “Callie Boom Boom.” She also sent an email to Reynolds' wife to her school email account and a Facebook message to Reynolds’ wife.
Baker contacted four of Reynolds' co-workers and his employer's chief executive officer.
According to the board report, when Reynolds received the communications, he believed he was the target of a scam. He noted that Zelle sent warning messages cautioning users to be wary of anyone not known contacting them to request money, especially with urgent demands.
Reynolds followed the advice of his bank and took no action to return the money. Four days after being contacted by Baker, Reynolds received notice that the money had been removed from his account. By the first week of October, the funds were returned to Baker’s account. The board noted the funds were returned to Baker 13 days after she made the transfer and 11 days after contacting Reynolds.
Funds Recipient File Grievance Against Attorney
After receiving the messages from Baker, Reynolds filed a grievance with the Dayton Bar Association against Baker. After Baker received her funds, she abandoned efforts to sue Reynolds for the money. She received notice of the grievance in mid-October and then filed a lawsuit against Reynolds, claiming defamation and conversion. In her complaint, she sought $80,000 for her defamation claims and $2,500 for conversion.
According to the board, Reynolds hired an Illinois attorney who contacted Baker, asking her to dismiss the lawsuit. When Baker declined and continued her case, Reynolds hired an Ohio law firm to represent him.
Reynolds told the board that he had paid two law firms more than $21,000 to defend against the claims filed by Baker.
A three-member board panel conducted a hearing on the bar association’s complaint against Baker. The panel found she committed rule violations. The board adopted the panel’s report and has recommended to the Supreme Court that Baker be suspended for one year with six months stayed on the condition that she does not commit any further misconduct. To be reinstated, the board recommends that she pay any monetary sanctions regarding her civil lawsuit against Reynolds if ordered by the Montgomery County Common Pleas Court. The board recommended she complete six hours of continued legal education on legal ethics and professionalism, submit to an Ohio Lawyers Assistance Program (OLAP) evaluation, and comply with any OLAP recommendations.
Both the Dayton Bar Association and Baker object to the board’s recommendation, but for different reasons.
Attorney Disputes Allegations
In her objections to the Court, Baker states that she has not lied during the proceedings and is justified in bringing a lawsuit against Reynolds. She writes that her lawsuit was based on Reynolds's malicious and dishonest grievance. The Dayton Bar Association's pursuit of her is part of a pattern of targeting attorneys through selective enforcement, procedural irregularities, and reliance on ambiguously worded allegations that lack factual or legal foundation, she writes.
She maintains that she did not retaliate against Reynolds, but filed a civil action as a consequence of his misdeeds and omission of information when filing his grievance.
Bar Association Seeks Longer Suspension
The bar association urges the Court to reject Baker’s claims. The bar association denies any wrongdoing in handling the complaint and maintains that Baker’s actions warrant an indefinite suspension, a more severe sanction than the board recommends.
– Staff Report
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the Dayton Bar Association: Paul Roderer, rodererlaw@aol.com
Christine M. Baker, representing herself: christinebakerlaw@outlook.com
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