Paul Croushore, J.D., LL.M.
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Direct Appeals

Paul Croushore, JD, LLM, Croushlaw@gmail.com

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Appellate Advocate Criminal trials and post-conviction litigation, Civil trials and post-trial litigation

* Federal Fiscal Year ended June 20,2016, for all federal circuits
** State Appeals filed in Hamilton County, calendar year 2013
*** All statistics are as ofof final decisions of the highest court to which an appeal is taken,
not intermediate or post-conviction rulings ***

Appellant Direct Appeal Reversals:

  • Federal Criminal: 44.4%
  • State Criminal: 44.4%
  • State Civil: 47.4%

State Administrative Appeals: 50%

Compare to national and Ohio reversal averages:

  • National federal criminal reversal average, 2016: 7.2%1
  • Ohio 1st District Hamilton County civil reversal average 2013: 14.42%
  • Ohio 1st District Hamilton County criminal reversal average 2013: 16.6%3

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1Federal Fiscal Year ended June 20, 2016, for all federal circuits
2 Compiled by the author – 313 civil appeals filed, 45 were reversed
3 Id. – 475 criminal appeals filed, 79 were reversed

* Federal Fiscal Year ended June 20,2016, for all federal circuits
** State Appeals filed in Hamilton County, calendar year 2013
*** All statistics are as ofof final decisions of the highest court to which an appeal is taken,
not intermediate or post-conviction rulings ***

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Federal Criminal: 8-10 (Click on a link for case description - Click on the case name below for the court's opinion)

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State Civil: 9-10 (Click on a link for case description - Click on the case name below for the court's opinion)

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State Criminal: 8-10 (Click on a link for case description - Click on the case name below for the court's opinion)

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Settled Pending Appeal: 2 (Click on a link for case description - Click on the case name below for the court's opinion)

  • In re Mozelle Olson II (settled at oral argument)
  • Jackson v. Constantine II (settled pending oral argument)

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State Administrative Appeals: 1-1 (Click on a link for a case description - Click on the case name below for the court's opinion)

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Cases:

69.) - Affirmed - Ohio v. Billups, No. C-150500 (Ohio 1 st Dist., Jun. 16, 2017) – while patting down the outside of defendant’s clothing, officer felt a large lump as soon as he touched the seat of the pants; based on the location and size of the bulge, and his experience and knowledge that people often conceal drugs in the seat of their pants, it was immediately apparent to officer that the bulge contained illegal drugs; motion to suppress was properly denied.

68.) - Affirmed - US v. Tran, No. 16-5448 (6 th Cir., Mar. 22, 2017) – waiver of right to appeal provision of plea agreement prevents appellate from arguing sentencing errors.

67.) - Affirmed - Caraway v. Commonwealth, 459 S.W.3d 849 (Kentucky Supreme Court, 5/14/2015): [1]-Defendant's acceptance of a juror without reservation and in full knowledge of the juror's employment by the Division of Probation and Parole and attendant familiarity with the attorneys and court waived his right to appellate review of the trial court's failure to strike the juror for cause; [2]-An ineffective assistance of counsel claim was premature where defendant neither raised the issue to the trial court during trial nor challenged counsel's performance in a Ky. R. Crim. P. 11.42 proceeding, and thus, there was nothing in the record to allow proper consideration and evaluation of counsel's effectiveness; [3]-The trial court's refusal to hear additional character evidence at final sentencing was not error; [4]-The trial court was not required or authorized to order credit for time served in custody before sentencing under Ky. Rev. Stat. Ann. § 532.120(3).

66.) - Affirmed - Curry v. Brown, (U.S. Sixth Circuit, 4/21/2015): Where a supervisor told plaintiff that she should focus on her health rather than worry about the stress of supervising others, statement could not necessarily be inferred from the statement that plaintiff's demotion and transfer were the result of plaintiff taking FMLA, 29 U.S.C.S. § 2601 et seq., leave, but could instead be inferred as conciliatory in that the supervisor was encouraging plaintiff to think about her health and that the transfer would mean less stress at work; [2]-Where plaintiff, a county employee, was fired after admitting that she voted in a county's elections even though she had resided in another county, she could not establish pretext to rebut the proffered reason for her termination because her "similarly-situated" arguments as to the supervisor and a co-worker were not relevant.

65.) - Reversed - U.S. v. Alfred Ford, 13-5768 (7/3/2014): In sentencing on a guilty plea, district court erred when it failed to decide whether a proper sentencing enhancement for felonious assault had been proven.

64.) - Reversed - Marable v. Michael J Auto Sales, C-120373 (Ohio 1st Dist., May 1, 2013) – trial court erred in admitting testimony of alleged oral misrepresentations by car salesman in violation of parol evidence rule where the merger clause in the written contract provided that the vehicle was sold “as-is.”

63.) - Affirmed - US v. Bowdery, 12-5099 (6th Cir., Sept. 27, 2013) – peremptory challenges by defense counsel based on race of white prospective jurors under Batson v. Kentucky, 476 U.S. 79 (1986) affirmed where the justification of the strikes proposed by the defense was not plausible and no race-neutral reason was credible.

62.) - Affirmed - Ohio v. Hermann, C-110491 (Ohio 1st Dist., May 2, 2012) – errors in indictment waived by guilty plea; 26 year sentence not disproportionate for child sex offense by teacher at elementary school.

61.) - Affirmed - Ohio v. Mathes, CA2012-03-028 (Ohio 12th Dist., April 29, 2013) – trial counsel waived confrontation issue by not addressing it during trial, waived the issue of the trial court’s response to the jury questions by failing to make a record, and waived issue of the officer’s testimony as to Mathes’ Fifth Amendment request for an attorney; no plain error.

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60.) - Affirmed - US v. Barnett, 10-6268 (June 29, 2012),2012 U.S. App. LEXIS 13737; 2012 FED App. 0719N (6th Cir.); Prosecution introduced sufficient evidence to prove murder for hire plot.

59.) - Affirmed - Williams v. United Steel Workers, 11-3692 (July 5, 2012): Where employee was discharged for violating employer's zero-tolerance drug policy under a work rule, his hybrid LMRA § 301 claim failed because employer did not breach the CBA since, inter alia, "under the influence" in the work rule meant any influence.

58.) - Reversed - US v. Corp, 668 F.3d 379 (6th Cir. 2012): Because district court considered only defendant's conduct and did not apply USSG § 2G2.1(b)(4) based on objective nature of photographs at issue, the district court's application of the four-level enhancement was in error. Despite its disturbing nature, undepicted act of urination was irrelevant to district court's application of § 2G2.1(b)(4).

57.) - Reversed - US v. Jimmy Cornett, 10-6389 (6th Cir. 2011): Remanded to trial court to remove career offender designation; sentence changed from 327 months to 97 months.

56.) - Affirmed - US v. Ryan Cofer, 09-4579 (6th Cir. 2011): Trial counsel’s failure to preserve appellate rights constituted waiver which cannot be withdrawn.

55.) - Affirmed - US v Taylor, 09-5549 (6th Cir. 2011): Defendant failed to file any objection to the PSR and failed to raise any objection to the amount at the time of sentencing. Thus, the amount of loss was admitted by defantant, both with respect to the facts stated by the United States during his plea colloquy as well as by his acquiescence to the PSR, and the district court's decision to direct him to pay the amount in restitution was not plain error.

54.) - Affirmed - US v Bryant, 09-5527 (6th Cir. 2011): Question of whether a stun gun is a dangerous weapon pursuant to USSG 2Dl.l(b)(l) is waived by failure to preserve the issue at trial court.

53.) - Affirmed - US v. Grisel, 2009 Fed App. 0613N: pending reconsideration and Sup Ct review - disqualification of lead counsel as unindicted co-conspirator during trial does not require a new trial; use of pre-arrest silence as substantive evidence of guilt approved; changing theories throughout the litigation is mere variance rather than construative amendment of indictment.

52.) - Reversed - Zineddin v. McDermott, (Aug. 15, 2008), unreported No. 04-73617: contesting payment of outstanding medical charges due to a work related injury.

51.) - Reversed - Cundall v. U.S. Bank, 2007-Ohio-7067 (1st District 12/28/2007) for Nick Ward: Fiduciaries have the burden of proving the “perfect fairness and honesty” of a transaction that was entered into during the fiduciary relationship. Whether the fiduciary has demonstrated the fairness of a transaction is a question of fact for a jury.

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50.) - Affirmed - Willow Creek Homeowners’ Association v. Gammarino, (unreported), 2007-Ohio-____ (1st District 12/5/2007). Trial court not shown to have abused its discretion in adopting magistrate’s report where it was not provided a transcript.

49.) - Affirmed - Gammarino v. Charles Smith, (unreported), 2007-Ohio-4073. Rent abatement of one-half is appropriate sanction for landlord who violates trial court's order to repair, and ownership must yet be determined.

48.) - Reversed - US v. DeWitt, (2005), unreported (6th Circuit), 2005 US App. LEXIS 17828: trial court's reliance upon facts not admitted by defendant in plea agreement but proven by preponderance of evidence requires re-sentencing under Booker v. Washington; U.S. waived claim of non-appealability by failing to raise in its initial brief.

47.) - Reversed - Providian v. Woods, (May 13, 2005), unreported (Kentucky CA 2003-CA-000094-MR): trial court erred in relieving debtor of liability as sanction for creditor's failure to appear for noticed hearing.

46.) - Reversed - Roe v. Heap, (May 11, 2004), unreported (10th Dist) for Boyd Binning: trial court erred in granting summary judgment in favor of defamation defendant who publicly made false statements about plaintiff.

45.) - Affirmed - Baker v. Providian, (Dec 19, 2003), unreported (Kentucky CA 2002-CA-002355-MR): customer's claims against bank in defense of defaulted loan agreement held meritless; trial court decision affirmed.

44.) - Affirmed - US v. Nance, (2002), unreported (6th Circuit), 2002 US App. LEXIS 23219: federal sentencing guidelines not misapplied by trial court.

43.) - Affirmed - Warren v. Ohio Dept Public Safety, (Oct 31, 2001), unreported (6th Cir.): summary judgment against Title VII plaintiff affirmed for other reasons.

42.) - Affirmed - Marshall v. Tax Commissioner, (Aug. 10, 2001) unreported No. 98-P-923: notice of appeal from a final determination of the Tax Commissioner. Mr. Marshall asserts that he is not responsible for sales tax for the period of January 1, 1993 through March 22, 1993.

41.) - Reversed - Edwards v. Grant Anesthesia Associates, (Dec 29, 2000), unreported (10th) for Boyd Binning & Lewis Williams: trial court admission of evidence containing prejudicial hearsay error requiring retrial.

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40.) - Affirmed - Mansour v. Vulcan, (June 19, 2000), unreported CA99-09-150 (12th Dist): waterproofing company not required to conform to consumer sales practices act RC 1345.21 by having a warehouse and despite lack of a showroom open to the public.

39.) - Reversed - Ohio v. Coach, (May 5, 2000), unreported 00-LW-1817 (1st Dist): Defendant must be present at sentencing; changing judgment entries without Defendant present violates due process.

38.) - Affirmed - Furlong v. Shaffer, (Dec 14, 1999), unreported (10th): court sale deed relates back to time of auction.

37.) - Affirmed - Ekman v. Commissioner, 184 F.3d 522 (6th Cir. Jun 4, 1999): Taxpayer who prevails at trial as to 90% of assessed deficiencies is not entitled to attorney fees because Commissioner's position not shown to be "unreasonable"; experimentation property must be depreciated rather than deducted, thus IRS position that the property must be capitalized is somehow not unreasonable.

36.) - Reversed - INF v. Donnellon, (May 21, 1999), 133 Ohio App.3d 787 (1st Dist): trial court erred in holding that receiver is personally immune from suit for improper actions taken during the receivership.

35.) - Reversed - BodyPower v. Mansour, (August 14, 1998), unreported C9700796 (1st Dist): order that plaintiffs pay receiver fee is res judicata and not subject to revision to punish the defendant for prior appeals.

34.) - Affirmed - Wood v. Health Care, (July 30, 1998), unreported 98-LW-3509 (10th) w/Boyd Binning: summary judgment to defendant proper based on open and obvious condition causing injury to business invitee.

33.) - Affirmed - Leitshuh v. Allen, (September 12, 1997), unreported 16392 (2d Dist. Ohio): complaint in violation of statutory rules could properly be amended at trial over defendant's objection

32.) - Reversed - US v. Landerman, 109 F.3d 1053 (5th Cir. Mar 31, 1997): violation of right to cross-examine prosecution witness as to pending state felony charges requires reversal.

31.) - Affirmed - Ohio v. McGraw, (March 21, 1997), unreported 96-CA-1411 (2d Dist Ohio): guilty plea renders erroneous denial of motion to dismiss due to speedy trial violation immune from appeal.

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30.) - Reversed - Ohio v. Beatley, (March 21, 1997), unreported 8-96-20 (3d Dist. Ohio): Trial court erred in accepting a guilty plea without engaging in the discussion with the Defendant required by Civ.R. 11.

29.) - Affirmed - Mansour v. Acciani, (July 31, 1996), unreported C9500911 (1st Dist Ohio): trial court did not err in granting motion for summary judgment and failing to impose sanctions for discovery violations.

28.) - Reversed - Dials v. Powers, (July 2, 1996), unreported 96-LW-3447 (5th) w/Boyd Binning: trial court erred in vacating default judgment without evidentiary hearing

27.) - Affirmed - US v. Simms, (6th Cir. May 16, 1996), unreported, No. 95-4322, 1996 US App. LEXIS 16860: no reversible error by trial court.

26.) - Affirmed - Alt v. Community Cable, (March 28, 1996), unreported 1-95-64 (3d Dist. Ohio): Award of attorney fees to prevailing plaintiff was not an abuse of discretion.

25.) - Affirmed - US v. Mahaffey, (9th Cir. Jan 25, 1996), unreported, No. 95-30123: defense counsel not ineffective for permitting trial court to persuade them to call their primary witness by telephone to speed up the trial.

24.) - Affirmed - Price v. Will, (Mar 30, 1995), unreported 95-LW-2633 (10th) w/Dean Talaganis: Trial correct finding of multiple contracts was not reversible error.

23.) - Reversed - Jackson v. Constantine, unreported, No. 94-4236 (6th Circuit, Dec 21, 1995): DEA Administrator's misunderstanding of Ohio law required remand to permit reconsideration.

22.) - Affirmed - Nelson v. City of Whitehall, (March 9, 1995), unreported No. 94APE09-1305 (10th) w/Bernie Yavitch: Failing to withdraw a warrant after a defendant appears voluntarily, resulting in a subsequent arrest, does not amount to harassment.

21.) - Affirmed - Ohio v. Boyer, (Dec 27, 1994), unreported, 94-LW-0607 (10th) w/Bernie Yavitch: Speedy trial after mistrial need not comply with speedy trial statute.

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20.) - Affirmed - Ohio v. Morgan, (Dec 14, 1994), 71 Ohio St.3d 178 for Max Kravitz & Bill Holt: Allegation of violation of 18 USC 1955 (conspiracy to gamble) is not a proper predicate offense under Ohio RICO statute.

19.) - Affirmed - Ohio v. Brewster, (Mar 16, 1994), unreported 93 CA 503 (4th): Ineffective assistance of trial counsel not proven to arise to plain error in murder conviction.

18.) - Affirmed - Ohio v. Barnett II, (Dec 29, 1993), 68 Ohio St.3d 115: Involuntary manslaughter charge cannot properly be based upon unscheduled traffic minor misdemeanor.

17.) - Reversed - Jack Schmidt Olds v. Commonwealth Capital, (Sept 30, 1993), unreported, 93-LW-5703 (10th Dist): trial court erred in finding that defendant's agent signed in a personal rather than representative capacity.

16.) - Affirmed - Ohio v. Francis, (Sept 3, 1993), unreported, 93-LW-2546 (5th Dist): trial counsel not shown to have been ineffective under test of Strickland v. Washington

15.) - Reversed - Watson v. Cedardale Homes, (August 20, 1993), unreported, No. 92-CAE-11040 (5th): Defective default judgment motion that did not include a certificate of service voids the subsequent default judgment.

14.) - Reversed - Ohio v. Barnett, (April 29, 1993), unreported, 93-LW-0851 (3d): Involuntary manslaughter charge cannot properly be based upon unscheduled traffic minor misdemeanor.

13.) - Reversed - US v. Garland, 991 F.2d 328 (6th Cir. Apr 19, 1993) w/Ramsey Clark & Max Kravitz: Evidence developed after trial demonstrated actual innocence and constituted "newly discovered evidence" per FRCrimP 33.

12.) - Reversed - Ohio v. Morgan, (April 17, 1993), unreported 93-LW-1896 (5th) w/Max Kravitz: Pattern of corrupt activity under Ohio statute must include conduct punishable as felony under Ohio, not federal, law.

11.) - Settled - In re Mozelle Olson, (Mar 11, 1993), unreported, N.D. Ohio Toledo: Bankruptcy court sanctions against debtor removed in settlement of appeal at oral argument--responsibility was that of debtor's counsel, not debtor.

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10.) - Reversed& - Ohio v. Ellis, (Jan 15, 1993), unreported, 93-LW-0151 (6th): Clear error in jury instruction in felonious assault case where trial judge mispronounced "physiological" as "psychological", despite lack of objection.

9.) - Reversed - US v. Salisbury, 983 F.2d 1369 (6th Cir. Jan 15, 1993) with Max Kravitz: 42 U.S.C. 1973i(e) void for vagueness as applied to Republican committee-woman who pressured voters into voting for R candidates.

8.) - Affirmed - Ohio v. Gamboa, (Dec. 28, 1992), unreported, 92-Ohio App. LEXIS 6680 (5th): breaks in chain of custody of evidence excused in rural Ohio.

7.) - Reversed - US v. Parillo, unreported, 92-US App. LEXIS 18515 (6th Cir. July 28, 1992): Sentencing calculation in fraud case should reflect only the difference in value and not included a vulnerable victim enhancement.

6.) - Affirmed - Ohio v. Merchant, (June 30, 1992), unreported, 92-LW-2615 (10th) for Sanders & Friedman: Trial court repaired flawed analogy as to culpable mental state of recklessness by reference to correct definition.

5.) - Reversed - Ohio v. Draughn, (June 24, 1992), unreported, 92-LW-3511 (10th) w/Ken Murray: Appellant's irrational conduct during trial should have put trial court on notice that appellant had again lapsed into incompetence.

4.) - Reversed - Ohio v. Roberts, (June 12, 1992), unreported No. 13-91-44 (3d Dist Ohio) w/Ken Murray

3.) - Affirmed - Wilson v. AEP, (April 21, 1992), unreported 92-LW-2712 (10th) for Mike Moses: Although trial court held to have incorrectly applied definition of malice in defamation action, that error did not require reversal.

2.) - Reversed - Ohio v. Xie, (July 31, 1990), unreported, 90-LW-2492 (10th Dist. Ohio) for Max Kravitz: Trial court abused discretion in refusing to allow withdrawal of guilty plea to murder charge where trial counsel gave ineffective advice as to parole eligibility.

1.) - Reversed - Ohio v. Rowe, (1990), 68 Ohio App.3d 595 for John F. Jackson Murder conviction improperly based upon polygraph examination results of co-defendant.

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(513) 225-6666
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