State v. Getzinger , 2013 Ohio 2146 ( 2013 )

[Cite as State v. Getzinger, 2013-Ohio-2146.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HENRY COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 7-12-06
v.
NICHOLAS B. GETZINGER, OPINION
DEFENDANT-APPELLANT.
Appeal from Napoleon Municipal Court
Trial Court No. 10 TRD 238
Judgment Affirmed
Date of Decision: May 28, 2013
APPEARANCES:
George C. Rogers for Appellant
Paul A. Skaaff for Appellee
Case No. 7-12-06
SHAW, J.
{¶1} Defendant-appellant, Nicholas B. Getzinger (“Getzinger”), appeals the
March 22, 2012 judgment of the Napoleon Municipal Court finding Getzinger
guilty of disorderly conduct and sentencing him to pay a fine of $150.00.
{¶2} On July 14, 2011, a criminal complaint was filed against Getzinger
alleging he committed disorderly conduct in violation of R.C. 2917.11(A)(2). The
complaint specifically alleged that Getzinger “did recklessly cause inconvenience,
annoyance, or alarm to another, by making unreasonable noise or an offensively
coarse utterance, gesture, or display or communicating unwarranted and grossly
abusive language to any person.” (Doc. No. 9). Notably, the complaint recited
verbatim the language of the statute. See R.C. 2917.11(A)(2). Getzinger
subsequently pleaded not guilty to the charge.
{¶3} On August 29, 2011, Getzinger filed a motion to dismiss the
complaint. Specifically, Getzinger asserted that the complaint omitted an essential
“element” of the offense by failing to allege that the language used by Getzinger
rose to the level of “fighting words.” In particular, Getzinger argued that the
complaint must have also alleged that the “words by their utterance, are likely to
inflict injury or provoke an immediate retaliating breach of the peace,” which is
the legal standard for “fighting words.” See In re T.W., 3d Dist. No. 1-12-16,
2012-Ohio-5938, ¶ 21, citing Cincinnati v. Karlan, 39 Ohio St.2d 107, 109–110
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(1974)(setting forth the standard for identifying “fighting words”). Getzinger
argued that because the complaint omitted the “fighting words” language, it was
constitutionality infirm because it failed to state all the essential elements of the
offense and thus also failed to comply with the notice requirements of Crim.R. 3.
(Doc. No. 12). The trial court took this motion under advisement and proceeded
to trial.
{¶4} On October 13, 2011, a trial to the court was held. At the conclusion
of the evidence, the trial court gave the parties seven days to file briefs with the
court regarding Getzinger’s motion to dismiss.
{¶5} On November 15, 2011, the trial court overruled Getzinger’s motion
to dismiss finding that the complaint tracked the language of R.C. 2917.11(A)(2)
and was not defective for failing to include the additional “fighting words”
language. In the same judgment entry the trial court also found that “the State met
its burden of proof beyond a reasonable doubt on each and every element of the
offense charged”. (JE, Nov. 15, 2011 at 3).
{¶6} On December 22, 2011, the trial court sentenced Getzinger to pay a
fine of $150.00 plus court costs.
{¶7} Getzinger appealed the judgment of the trial court. This Court
dismissed the appeal because the judgment entry did not specify the means of
conviction. See State v. Getzinger, 3d Dist. No. 7-12-01 (JE, Feb. 2, 2012).
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{¶8} On March 22, 2012, the trial court filed another judgment entry
specifying that it found Getzinger guilty of violating R.C. 2917.11(A)(2) and
imposed the same sentence of a $150.00 fine plus court costs. Getzinger
subsequently appealed this judgment to this Court.
{¶9} On August 2, 2012, Getzinger’s Attorney filed a motion with this
Court stating that the audio recording from the trial court proceedings was
compromised and the court reporter was unable to prepare a transcript.
Getzinger’s Attorney requested an extension of time to write “a statement of facts
or summary of the testimony.” (Mot. Aug. 2, 2012 at 2).
{¶10} On August 6, 2012, this Court issued a judgment entry granting
Getzinger’s Attorney leave to supplement the record with a statement of evidence
pursuant to App.R. 9(C).
{¶11} In lieu of a transcript, Getzinger’s Attorney submitted a document
entitled “Appellant’s App.R. 9(C) Statement of Evidence Supplementing the
Record Pursuant to Appellate Court Order of August 8, 2012 [sic].” After a brief
summary of the testimony given at trial, Getzinger’s Attorney concludes this
document by stating “while the above statement of evidence is somewhat sketchy,
it does accurately summarize the salient points made during the trial as shown by
my notes and recollection.” (Id. at 2).
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{¶12} The foregoing “Statement of Evidence” contained a certificate of
service indicating that opposing counsel was served with a copy. However, there
is nothing in the record demonstrating that this document was created as a formal
agreement between the parties, and there is nothing in the record demonstrating
that this document was formally submitted to the trial court. Accordingly, there is
nothing in the record to establish that the trial court approved Getzinger’s
“Statement of Evidence” as required by App.R. 9(C).
{¶13} Getzinger now appeals, asserting the following assignments of error.
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED IN FAILING TO DISMISS THE
COMPLAINT UPON DEFENDANTS [sic] MOTION; FOR
FAILURE TO ALLEGE ALL THE ELEMENTS OF AN
OFFENSE REQUIRED TO BE PROVEN UNDER R.C.
2917.11(A)(2) AS AUTHORITATIVELY CONSTRUED BY
THE OHIO SUPREME COURT IN State v. Hoffman, (1979) 57
OHIO ST.2d 129, AS NECESSARY TO MAKE SUCH
STATUTE CONSTITUTIONAL.
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT ERRED IN FAILING TO GRANT
DEFENDANTS’ [sic] MOTION TO DISMISS AT THE
CONCLUSION OF THE CASE, FOR INSUFFICIENCY OF
THE EVIDENCE TO SHOW HIS MERE WORDS BY THEIR
VERY UTTERANCE TENDED TO INCITE AN IMMEDIATE
BREACH OF THE PEACE AS NO BREACH OCCURRED
AND THE VERBAL EXCHANGE WAS INITIATED BY THE
COMPLAINT.
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First Assignment of Error
{¶14} In his first assignment of error, Getzinger claims the complaint
alleging he committed disorderly conduct in violation of R.C. 2917.11(A)(2) is
constitutionally defective because the “fighting words” standard is omitted from
the face of the complaint. Specifically, Getzinger argues that the Supreme Court
of Ohio in State v. Hoffman, 57 Ohio St.2d 129 (1979), “authoritatively construed”
the offense defined in R.C. 2917.11(A)(2) to also require the “words by their
utterance, are likely to inflict injury or provoke an immediate retaliating breach of
the peace” be proven as an additional “element” of the offense.
{¶15} In making this argument, it is apparent that Getzinger misconstrues
the Supreme Court’s holding in State v. Hoffman, in which the Court discussed the
interaction between disorderly conduct based on speech and the First
Amendment’s protection of free speech. In Hoffman, the Supreme Court stated
that “a person may not be punished under R.C. 2917.11(A)(2) for ‘recklessly
caus(ing) inconvenience, annoyance, or alarm to another,’ by making an
‘offensively coarse utterance,’ or ‘communicating unwarranted and grossly
abusive language to any person,’ unless the words spoken are likely, by their very
utterance, to inflict injury or provoke the average person to an immediate
retaliatory breach of the peace.” (Id. at 133). The Court in Hoffman reversed the
defendant’s conviction because the trial court failed to “take evidence” to
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determine if the defendant’s conduct rose to the level of “fighting words.” (Id.).
However, the Supreme Court did not specifically characterize this inquiry as
additional “element” of the offense nor did it make any ruling regarding the
sufficiency of the complaint alleging a violation of R.C. 2917.11(A)(2).
{¶16} Moreover, “the requirements of an indictment may be met by reciting
the language of the criminal statute.” State v. Childs, 88 Ohio St.3d 194, 199
(2000), citing State v. Murphy, 65 Ohio St.3d 554, 583 (1992). Here, the criminal
complaint recited verbatim the language contained in R.C. 2917.11(A)(2).
Furthermore, we note that the record in this case demonstrates that the trial court
complied with the directives of the Supreme Court in Hoffman. Accordingly, for
all these reasons, we conclude that the trial court did not err in overruling
Getzinger’s motion to dismiss. The first assignment of error is overruled.
Second Assignment of Error
{¶17} In his second assignment of error, Getzinger challenges the
sufficiency of the prosecution’s evidence to convict him of disorderly conduct in
violation of R.C. 2917.11(A)(2).
{¶18} Before we reach the merits of this assignment of error we note that
App.R. 9 states that the appellant must submit a transcript of the trial court
proceedings they deem necessary to the appellate court for its review. Specifically,
App.R. 9(B)(4) states that “[i]f the appellant intends to present an assignment of
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error on appeal that a finding or conclusion is unsupported by the evidence or is
contrary to the weight of the evidence, the appellant shall include in the record a
transcript of proceedings that includes all evidence relevant to the findings or
conclusion.”
{¶19} If no transcript is available, App.R. 9(C) and (D) provide alternatives
for the appellant. The record indicates that the recording of the transcript was
compromised and could not be transcribed. As a result, Getzinger attempted to
avail himself of App.R. 9(C) which addresses the situation where no transcript or
recording is available:
If no recording of the proceedings was made, if a transcript is
unavailable, or if a recording was made but is no longer
available for transcription, the appellant may prepare a
statement of the evidence or proceedings from the best available
means, including the appellant’s recollection. The statement
shall be served on the appellee no later than twenty days prior to
the time for transmission of the record pursuant to App.R. 10
and the appellee may serve on the appellant objections or
propose amendments to the statement within ten days after
service of the appellant’s statement; these time periods may be
extended by the court of appeals for good cause. The statement
and any objections or proposed amendments shall be forthwith
submitted to the trial court for settlement and approval. The trial
court shall act prior to the time for transmission of the record
pursuant to App. R. 10, and, as settled and approved, the statement
shall be included by the clerk of the trial court in the record on
appeal.
(Emphasis added).
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{¶20} “Approval as contemplated by Appellate Rule 9(C) means that,
whether or not settlement is required, the trial court must determine the accuracy
and truthfulness of a proposed statement of evidence or proceedings and then
approve it. Independent of any agreement or disagreement between the parties,
the trial court has the responsibility, duty, and authority under Appellate Rule 9(C)
to delete, add or otherwise modify portions of a proposed statement of the
evidence or proceedings so that it conforms to the truth and is accurate before it is
approved.” Aurora v. Belinger, 180 Ohio App.3d 178, 2008–Ohio–6772, ¶ 35
(11th Dist.), citing Joiner v. Illuminating Co., 55 Ohio App.2d 187, (8th
Dist.1978), syllabus.
{¶21} Here, the record reflects that Getzinger’s counsel prepared a
proposed “Statement of Evidence” from his own recollection and served this
proposed “Statement of Evidence” on the prosecution as required by App.R. 9(C).
The record further indicates that the prosecution did not file any objections and we
note that, for the first time on appeal, the prosecution acknowledges Getzinger’s
“Statement of Evidence” by incorporating the document as part of the appendix in
its appellate brief.
{¶22} However, these circumstances, in our view, are not sufficient to
establish a proper agreement by the Prosecutor to a proposed “Statement of
Evidence” by the defense under App.R. 9(C), which clearly requires any such
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agreement to be established in the trial court prior to the transmission of the record
to the Court of Appeals.
{¶23} Moreover, even if we were to somehow construe the “Statement of
Evidence” to have been agreed to by the prosecution, the “Statement of Evidence”
in this case must fail anyway because there is nothing in the record establishing
that Getzinger’s proposed “Statement of Evidence” was submitted to the trial court
for approval as required by the appellate rule and the trial court’s signature does
not appear on the proposed “Statement of Evidence.” See King v. Plaster, 71 Ohio
App.3d 360, 362 (3d Dist.1991)(stating that a reviewing court must presume that a
trial court did not approve the statement of evidence if the trial court fails to sign
the statement). Rather, the record demonstrates that Getzinger simply filed his
proposed “Statement of Evidence” with this Court on appeal. In sum, even an
agreement of the parties is not an acceptable substitute for the trial court’s
approval as required by App.R. 9(C).
{¶24} Therefore, since the proposed “Statement of Evidence” was never
submitted to the trial court for approval, the statement and the filing thereof fail to
comport with the requirements of App.R. 9(C). We further note that a number of
“salient points” included in Getzinger’s proposed “Statement of Evidence” fail to
include and/or even contradict some of the specific factual findings made by the
trial court in its November 15, 2011 Judgment Entry thereby casting doubt on
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whether the trial court would have approved Getzinger’s proposed “Statement of
Evidence” without any modification.
{¶25} Therefore, absent an adequate record of the facts, testimony, and
evidentiary matters necessary to support the second assignment of error, which is
the appellant’s responsibility to provide, this Court is left with no choice but to
presume the validity of the proceedings and affirm trial court’s judgment. See
Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199 (1980). Accordingly,
Getzinger’s second assignment of error is overruled.
{¶26} Based on the foregoing, the judgment and sentence of the Napoleon
Municipal Court is affirmed.
Judgment Affirmed
ROGERS, J., concurs.
/jlr
WILLAMOWSKI, J., Concurring in Part, and Dissenting in Part.
{¶27} While I concur with the majority’s disposition of the first assignment
of error, I respectfully dissent as to its disposition of the second assignment of
error because I believe that this case is capable of decision on the merits without
the transcript, and in the event that this case is not capable of decision on the
merits without the transcript, unlike the majority, I would accept the Statement of
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Evidence Supplementing the Record, accepted by both sides as the facts herein,
and address the second assignment of error on the merits and invite the majority to
consider and be guided by Lewis v. New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39
L.Ed.2d 214 (1974), State v. Hoffman, 57 Ohio St.2d 129, 131 (1979), R.A.V. v.
City of St. Paul, Minnesota, 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305(1992), and Seven Hills v. Aryan Nations, 76 Ohio St.3d 304, 308 (1996).
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