City of Grandview Heights v. [B.S.H.]
No. 22AP-207
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
March 23, 2023
[Cite as Grandview Hts. v. B.S.H., 2023-Ohio-940.]
EDELSTEIN, J.
(M.C. No. 2021 CRB 013747) (REGULAR CALENDAR)
Rendered on March 23, 2023
On brief: B.S.H., pro se.
On brief: Elizabeth A. Well, Ohio Crime Victim Justice Center, for appellant. Argued: Elizabeth A. Well.
APPEAL from the Franklin County Municipal Court
EDELSTEIN, J.
{1} Victim-appellant, K.H., appeals from a judgment of the Franklin County Municipal Court denying her motion to be present at the trial of defendant-appellee, B.S.H. For the reasons that follow, we dismiss the appeal as moot.
I. Facts & Procedural History
{2} On September 3, 2021, the City of Grandview Heights (“Grandview Heights“) charged B.S.H. with one count of criminal damaging in violation of Grandview Heights Ordinance (“G.H.O.“) 541.03(a), a misdemeanor of the second degree. The criminal complaint alleged that, on September 3, 2021, B.S.H. purposefully maneuvered her vehicle to hit K.H.‘s parked vehicle. B.S.H. requested a jury trial and Grandview Heights
{3} On February 25, 2022, K.H. filed a motion asking the court to enforce her right to be present and heard during all court proceedings involving B.S.H. K.H. asserted that, as the victim of the charged offense,
{4} On February 28, 2022, B.S.H. waived her right to a jury trial and the case proceeded to a bench trial. Immediately before trial, the court held a hearing on K.H.‘s motion. B.S.H.‘s attorney argued that K.H.‘s presence would deprive B.S.H. of a fair trial, because there was “limited evidence” and the “State‘s case hinge[d] on [K.H.].” (Tr. at 7.) The court noted the case involved “[a]n ongoing neighbor dispute” between K.H. and B.S.H. and that K.H.‘s testimony would likely be “tainted” if she heard the other witness‘s testimony. (Tr. at 6.) As such, the court concluded that K.H.‘s presence throughout trial would deprive B.S.H. of a fair trial and denied K.H.‘s motion. (Tr. at 7.)
{5} On March 1, 2022, the court issued a decision and entry finding B.S.H. not guilty of the criminal damaging charge and dismissed the case.1 On March 2, 2022, K.H. moved the court to issue an entry reflecting the court‘s pre-trial ruling on K.H.‘s February 25, 2022 motion. The court issued an entry on March 29, 2022, denying K.H.‘s motion to be present at trial for the reasons stated by the court at the February 28, 2022 hearing.
II. Assignment of Error
{6} K.H. appeals, presenting the following assignment of error for our review:
The trial court erred in its March 29, 2022 Entry by denying Victim-Appellant K.H.‘s constitutional and statutory right to be present at trial.
{7} K.H.‘s sole assignment of error asserts the trial court violated the
{8} In any proceeding involving a criminal offense against a victim, the victim “may assert the rights enumerated in [Section 10a] and any other right afforded to the victim by law.”
{9} While Marsy‘s Law incorporates the victim‘s right to be present at trial into the
{10} K.H. contends B.S.H. failed to present, and the trial court failed to find, particularized evidence demonstrating that K.H.‘s presence at trial would deprive B.S.H. of a fair trial. See State v. McConnaughey, 1st Dist. No. C-200273, 2021-Ohio-3320, ¶ 29, quoting State v. Maley, 1st Dist. No. C-120599, 2013-Ohio-3452, ¶ 7 (” ‘[F]or a defendant to show that a victim‘s presence would result in an unfair trial, [the defendant] must present particularized evidence that the victim‘s testimony will be so affected by the victim‘s presence during the testimony of the other witnesses that [the defendant‘s] right to a fair trial would be violated.’ “); Alrefaei at ¶ 60. However, even if we found the trial court erred by denying K.H.‘s request to be present at trial, there is no remedy we could provide K.H. As noted above, after the hearing on K.H.‘s motion, the case proceeded to a bench trial and the court acquitted B.S.H. of the criminal damaging charge. The Double Jeopardy Clause of the
{11} As the trial court acquitted B.S.H. of criminal damaging, the Double Jeopardy Clause protects B.S.H. from being tried again for the same offense. Therefore, since B.S.H. may not be tried again in K.H.‘s presence, K.H.‘s appeal of the court‘s decision denying her request to be present at B.S.H.‘s trial is moot. See Brasher at ¶ 25 (stating that, “like most constitutional rights, [a victim‘s rights under Marsy‘s Law] can be forfeited if [they are] not invoked as necessary or required“).
{12} As a general matter, courts will not resolve moot issues. In re L.W., 168 Ohio App.3d 613, 2006-Ohio-644, ¶ 11 (10th Dist.). ” ‘The doctrine of mootness is rooted in the
{13} K.H. contends that, even if the present appeal is moot, this court should address her assignment of error because exceptions to the mootness doctrine apply to the case. The following exceptions to the mootness doctrine permit a court to address an otherwise moot case: (1) where the issue is capable of repetition, yet evades review; (2) where a debatable constitutional question remains to be resolved; or (3) where the case involves a matter of great public or general interest. L.W. at ¶ 12; Kilbane Koch at ¶ 13, 16. K.H. asserts that all three exceptions apply to the present case.
{14} The exception to mootness for issues that are capable of repetition but evade review “applies only in exceptional circumstances in which the following two factors are both present: (1) the challenged action is too short in its duration to be fully litigated before its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.” State ex rel. Calvary v. Upper Arlington, 89 Ohio St.3d 229, 231 (2000), citing Spencer v. Kemna, 523 U.S. 1, 17-18 (1998). The first prong of the test concerns cases that are rendered moot by “temporal situations.” Ashtabula Cty. Joint Vocational School v. O‘Brien, 11th Dist. No. 2004-A-0092, 2006-Ohio-1794, ¶ 32. Accord James A. Keller at 792. For instance, a trial court may rule “on the legality of an abortion, or a student‘s suspension from school, because, in the
{15} K.H. contends the first prong of the capable of repetition yet evading review test is satisfied in the present case because “[c]riminal cases, particularly misdemeanors, are short in duration.” (Appellant‘s Brief at 28.) However, there is nothing in the record indicating that K.H. attempted to stay the proceedings following the court‘s adverse ruling on her motion to be present at trial in order to file an interlocutory appeal. See Croce at ¶ 23 (finding the “challenged action was not too short in duration to be fully litigated,” as the appellant “could have sought available remedies to expediate the process such as requesting a stay or expedited briefing“); TP Mechanical Contrs., Inc. v. Franklin Cty. Bd. of Commrs., 10th Dist. No. 08AP-108, 2008-Ohio-6824, ¶ 22 (noting the appellant would not be “precluded from obtaining review of these same issues” in the future, so “long as a timely stay of execution or injunction pending appeal [was] obtained“); T&R Properties, Inc. v. Wimberly, 10th Dist. No. 19AP-567, 2020-Ohio-4279, ¶ 11. Accordingly, the challenged action was not too short in duration to be fully litigated; rather, K.H. failed to take legal action to preserve the issue for review.
{16} K.H. asks that we not enforce the second prong of the capable of repetition yet evading review test because the Supreme Court of Ohio and this court have “not strictly interpreted the ‘same complaining party’ requirement.” (Appellant‘s Brief at 28, 34.) See Huffer at 14. However, the Supreme Court recently upheld the same complaining party requirement, explaining that “[i]t is not enough for an issue to be capable of repetition between some parties; the issue must be capable of repetition between the ‘same’ parties.” (Emphasis sic.) M.R. v. Niesen, 167 Ohio St.3d 404, 2022-Ohio-1130, ¶ 12. See In re E.Y., 1st Dist. No. C-210548, 2022 Ohio App. LEXIS 2697 (Aug. 17, 2022) (stating that in M.R. the Supreme Court “affirmed that the ‘same parties’ rule strictly applies“); Craig v. Gilchrist, 10th Dist. No. 22AP-52, 2022-Ohio-4477, ¶ 10. K.H. essentially asks this court to disregard applicable law, which we decline to do. Moreover, K.H. fails to demonstrate a reasonable expectation that she will again be the victim of a crime perpetrated by B.S.H. and denied her request to be present at a future trial.2 Accordingly, the present case does not satisfy the mootness exception for issues that are capable of repetition yet evade review.
{17} Although a case may be moot as to the parties, a court will have jurisdiction to entertain an appeal where “there still remains a debatable constitutional question for th[e] court to resolve.” Franchise Developers, Inc. v. Cincinnati, 30 Ohio St.3d 28, 31 (1987). See Smith v. Leis, 106 Ohio St.3d 309, 2005-Ohio-5125, ¶ 15 (finding the appeal excepted from mootness because the case “present[ed] a properly debatable constitutional issue, i.e., whether Section 9, Article I of the Ohio Constitution, as amended, authorize[d] cash-only bail“); CT Ohio Portsmouth, L.L.C. v. Ohio Dept. of Medicaid, 10th Dist. No. 19AP-588, 2020-Ohio-5091, ¶ 22 (finding the mootness exception for “constitutional question[s]” applicable, as the trial court found the statute at issue “facially unconstitutional“); In re A.G., 139 Ohio St.3d 572, 2014-Ohio-2597, ¶ 38.
{18} K.H. alleges the present case involves debatable constitutional questions regarding “[w]hether a victim is entitled to enforcement of her constitutional right to be present, her rights to justice and due process, and the right to be treated with fairness and respect.” (Appellant‘s Brief at 25.) However, the issue in the present appeal concerns whether the trial court erred by finding the ongoing neighbor dispute between K.H. and B.S.H., and the possibility that K.H.‘s testimony would be tainted, sufficient grounds to deny K.H.‘s motion to be present at trial. Thus, the case concerns the trial court‘s application of the facts of the case to applicable law, and does not involve a broader debate regarding victims’ rights under Marsy‘s Law. Accordingly, the case does not present a debatable constitutional question for this court to resolve.
{19} The exception to mootness for matters of great public or general interest “is only used with caution and on rare occasions.” Croce, 2021-Ohio-2242, at ¶ 20. “Generally,
{20} K.H. argues the trial court‘s decision implicates matters of great public interest because the case involves constitutional rights and “has the potential to impact all crime victims.” (Appellant‘s Brief at 27.) As noted, however, because the trial court denied K.H.‘s motion to be present based on factual findings specific to the case, a ruling on the merits of K.H.‘s appeal would impact only the parties to this case, not all crime victims in Ohio. The present case therefore does not present a matter of great public or general interest.
{21} Based on the foregoing, we find the present appeal to be moot. Because the appeal is moot, we must dismiss the appeal for lack of jurisdiction. See Croce at ¶ 25 (dismissing the appeal for “lack of jurisdiction” because the case was moot); Hussain v. Sheppard, 10th Dist. No. 14AP-686, 2015-Ohio-657, ¶ 10 (dismissing the appeal as moot “sua sponte“); M.R. at ¶ 13.
IV. Conclusion
{22} For the foregoing reasons, we sua sponte dismiss the appeal as moot.
Appeal dismissed.
LUPER SCHUSTER and BOGGS, JJ., concur.