Cleveland v. SammonCleveland v. Sammon
JUDGMENT: AFFIRMED
RELEASED: July 9, 2009
JOURNALIZED:
ATTORNEY FOR APPELLANT
2000 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Victor R. Perez
Chief Prosecutor
Aric Kinast
Assistant City Prosecutor
City of Cleveland
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
N.B. This entry is an announcement of the court‘s decision. See
{¶ 1} Appellant, Brian J. Sammon, brings this appeal challenging his October 29, 2008 conviction for disorderly conduct while intoxicated, as defined in
{¶ 2} On the evening of September 6, 2008, appellant was aboard a ship, the Nautica Queen, in Cleveland, Ohio. Officer James Dunn of the Cleveland Police Department testified that he received a call that evening from ship security that he was required to respond to pick up a passenger being escorted off the ship when it docked. Officer Dunn consequently detained and arrested appellant. The record indicates that appellant was intoxicated and urinated off the side of the ship. In the process, he accidentally urinated on several passengers.
{¶ 3} When asked about the state of appеllant, Officer Dunn testified that appellant had visible stains on his pants consistent with urine stains, he smelled a strong odor of alcohol on appellant‘s breath, appellant was incoherent when asked questions, and appellant was intoxicated. Officer Dunn interviewed six or seven passengers that had witnessed or were involved in the incident who he classified as “irate” and “very angry.”
{¶ 5} Appellant brought a motion to dismiss on September 25, 2008 based on his lack of notice due to receiving a citation that did not contain a legible statement of the charges against him or any codified ordinance allegedly violated. At a pretrial hearing in regard to this motion, appellant was presented with a legible copy of the citation. On October 29, 2008, appellant‘s motion to dismiss was considered. Before ruling, the presiding judge asked if appellant had been given a legible copy of the citation. Appellant‘s counsel responded that he had been given one at the prеvious pretrial hearing. The motion was denied. A bench trial was then held. The judge found appellant guilty of disorderly
Review and Analysis
Illegible Citation
{¶ 6} “I. The trial court erred in failing to grant defendant/appellant‘s motion to dismiss the citation which was without any codified ordinance, revisеd code section or information concerning the allegations or charges and was therefore, void.”
{¶ 7} The issue presented in this assignment of error is whether a properly executed, but illegible, copy of a misdemeanor citation provides sufficient notice and opportunity to prepare when a legible copy has been given to the defendant more than a month before trial.
{¶ 8} “The Ohio Constitution guarantees that every defendant has the right to know ‘the nature and cause of the accusation against him.’
{¶ 9} The written notice requirement, expressed through
{¶ 10} Appellant points to City of Cleveland Heights v. Pearlman (1983), 8 Ohio App.3d 443, 457 N.E.2d 926, as instructive, and this court agrees. In this case, two traffic citations failed to define adequately the charges involved when two defendants were cited for driving while intoxicated without specifying the type of intoxication involved. Just before trial, the city moved to amend the charges to clarify, which the trial court granted. The defendants were subsequently convicted. This court upheld the convictiоns finding sufficient notice and a lack of prejudice. We stated in Pearlman, supra, at 446, “amendments of misdemeanor complaints should be allowed if the defendant still has a reasonable opportunity to prepare his defense and the amendments simply clarify or amplify in a manner consistent with the original complaint.”
{¶ 12} In cases where errors in the indictment did not “‘permeate the trial from beginning to end and put into question the reliability of the trial court in serving its function as a vehicle for determination of guilt or innocence,‘” the plain-error analysis under
{¶ 13} To constitute plain error, the error must be obvious on the record, palpable, and fundamental, so that it should have been apparent to the trial court without objection. See State v. Tichon (1995), 102 Ohio App.3d 758, 767, 658 N.E.2d 16. Moreover, plain error does not exist unless the appellant establishes that the outcome of the trial clearly would have been different but for the trial court‘s allegedly improper actions. State v. Waddell (1996), 75 Ohio St.3d 163, 166, 661 N.E.2d 1043. Notice of plain error is to be taken with utmost caution, under exceptional circumstаnces, and only to prevent a manifest miscarriage of justice. State v. Phillips, 74 Ohio St.3d 72, 83, 1995-Ohio-171, 656 N.E.2d 643.
{¶ 14} Amendment under
{¶ 15} Here, amendment of the citation, namely curing the defect to appellant‘s copy, was consistent with
{¶ 16} Next, appellant cites to no prejudicial effect from the illegible citation, and none is disclosed in the record. Appellant was fairly put on notice to the charge against him in the summons issued on September 11, 2008 at his arraignment and, more importantly, when a legible copy of the original citation was presented to appellant during a pretriаl hearing on September 25, 2008. Trial did not commence until October 29, 2008. This span provided appellant sufficient time in which to prepare.
{¶ 17} We find that appellant had sufficient notice and opportunity to prepare his defense, and no prejudice to a substantial right occurred. An illegible citation, when appellant is given a valid, legible copy with sufficient time to prepare a defense, is harmless error and not sufficient grounds for setting aside a conviction absent a showing of an abridgment of a substantive right.
Circumstantial Evidence and Hearsay Testimony
{¶ 18} “II. The trial court erred in convicting the defendant/appellant based on circumstantial, hearsay testimony alone.”
{¶ 19} Appellant claims that inadmissible hearsay testimony and circumstantial evidence were the only evidеnce against him and denied him the right to cross-examine his accusers. This Confrontation Clause argument lacks merit for the following reasons.
{¶ 21} Under
{¶ 22} Generally in Ohio, “sobriety or lack thereof is a proper subject for lay opinion testimony. ‘When it appears that an individual in all probability has sufficient experience to express an opinion as to whether or not a man is drunk or sober and opportunity to observe him, he may do so without further explanation.’ Columbus v. Blanchard (1963), 120 Ohio App. 72, 74, 201 N.E.2d 233, quoting Reinheimer v. City of Greenville (1930), 9 Ohio Law Abs. 573, 574.” Fairfield v. Tillett (1990), Butler App. No. CA89-05-073.
{¶ 24} Offiсer Dunn‘s testimony was also not hearsay, as previously defined. He was offering direct testimony as to what he observed. When the prosecutor asked about witness statements, appellant properly objected, and Officer Dunn was precluded from discussing what others told him. At trial, it was Officer Dunn accusing appellant of drunkenly violating the peace and tranquility of those around appellant by conducting himself in an annoying manner, which is not hearsay. See Fairfield v. Tillett, supra.
{¶ 25} Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177, stands for the proposition that each defendant has a constitutional right to confront his accusers, but that right was not violated here. Appellant had the opportunity to cross-examine Officer Dunn about his testimony and chose not to do so. Other witnesses may have been available to testify, but were not required in order to establish that appellant was guilty of disorderly conduct while intoxicated. Appellant‘s claimed lack of opportunity to confront his accusers is without merit.
Sufficiency and Manifest Weight of the Evidence
{¶ 27} “IV. The conviction is against the manifest weight of the evidence.”
{¶ 28} Whether the evidence is legally sufficient to sustain a verdict is a question of law. State v. Robinson (1955), 162 Ohio St. 486, 124 N.E.2d 148. A conviction based on legally insufficient evidence constitutes a denial of due process. Tibbs v. Florida (1982), 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652, citing Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.
{¶ 29} Where there is substantial evidence upon which the trier of fact has based its verdict, a reviewing court abuses its discretion in substituting its judgment for that of the trier of fact as to the weight and sufficiency of the evidence. State v. Nicely (1988), 39 Ohio St.3d 147, 529 N.E.2d 1236. The weight to be given the evidence and the credibility of the witnesses are primarily for the trier of fact to determine. State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212. On review, the appellate court must determine, after viewing the evidence in a light most favorable to the prosecution, whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonаble doubt. State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492; Jackson v. Virginia, supra.
{¶ 30} Appellant argues that Officer Dunn, the lone witness called by the city, provided insufficient evidence to sustain a conviction for disorderly conduct
{¶ 31} The crime of disorderly conduct while intoxicated has three distinct elements: A person must be (1) voluntarily intoxicated (2) while in the presence of two or more people (3) and engage in conduct that is likely to be offensive or to cause inconvenience, annoyance, or alarm to persons of ordinary sensibilities.
{¶ 32} Examining whether the trial court abused its discretion in finding appellant guilty, we observe that the city called Officer Dunn, the arresting
{¶ 33} Viewing the evidence in a light most favorable to the city, we find the trial court did not abuse its discretion when finding appellant guilty and fining him $150. Appellant‘s third assignment of еrror is overruled.
{¶ 34} Sufficiency of the evidence is subjected to a different standard than is manifest weight of the evidence.
{¶ 35} The United States Supreme Court recognized the distinctions in considering a claim based upon the manifest weight of the evidence as opposed to sufficiency of that evidence. The court held in Tibbs v. Florida, supra, that, unlike a reversal based upon the insufficiency of the evidence, an appellate court‘s disagreement with the jurors’ weighing of the evidence does not require special deference accorded verdicts of acquittal, i.e., invocation of the double jeopardy clause as a bar to relitigation. Id. at 43. Upon application of the standards enunciated in Tibbs, the court in State v. Martin (1983), 20 Ohio App.3d 172, 485 N.E.2d 717, has set forth the proper test to be utilized when addressing the issue of manifest weight of the evidence. The Martin court stated: “The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines whether in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” Martin at 720.
{¶ 36} Sitting as the “thirteenth juror,” evaluating the evidence as a whole, we find that the trial court did not lose its way in convicting appellant. Uncontroverted testimony by Officer Dunn established the necessary elements of the crime as set
{¶ 37} Finding no merit in any of appellant‘s claims of error, we affirm appellant‘s conviction for disorderly conduct while intoxicated.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a spеcial mandate issue out of this court directing the Cleveland Municipal Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
PATRICIA ANN BLACKMON, P.J., and MELODY J. STEWART, J., CONCUR
Notes
“No person, while voluntarily intoxicated shall do either of the following:
“(1) In a public place or in the presence of two or morе persons, engage in conduct likely to be offensive or to cause inconvenience, annoyance or alarm to persons of ordinary sensibilities, which conduct the offender, if he were not intoxicated, should know is likely to have such effect on others;
“(2) Engage in conduct or create a condition which presents a risk of physical harm to himself or another, or to the property of another.”