CITY OF PARMA v. FRANCES S. MENTCH
No. 101222
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
December 24, 2014
2014-Ohio-5690
Boyle, A.J., Celebrezze, J., and McCormack, J.
Criminal Appeal from the Parma Municipal Court, Case No. 13 CRB 04726
Terrence P. Carl
Cleveland, Ohio 44103
ATTORNEY FOR APPELLEE
Timothy G. Dobeck
Law Director
City of Parma
6611 Ridge Road
Parma, Ohio 44129
MARY J. BOYLE, A.J.:
Procedural History
{¶2} In September 2013, a complaint was filed against Mentch in the municipal court, charging her with a single count of assault, in violation of Parma Codified Ordinance (“P.C.O.“) 636.02. Mentch pleaded not guilty to the charge.
{¶3} On the day of trial, Mentch filed a “motion to dismiss defective complaint,” arguing that neither the complaint nor the bill of particulars identified the necessary mens rea element of the assault offense. Specifically, Mentch argued that the complaint failed to include the “knowingly” mens rea, thereby rendering the complaint defective and warranting dismissal. The trial court denied thе motion, and the matter proceeded to a jury trial.
{¶4} The jury found Mentch guilty of assault. Following the jury‘s verdict, the trial court immediately sentenced Mentch to the maximum penalty of 180 days in jail, suspending 150 days. Following the sentencing hearing, the trial court issued its journal entry that included an imposition of “24 months of probation,” requiring Mentch to report for six months of the probationary period.
{¶5} At the time of oral argument, Mentch had already served her 30-day sentence in jail and had bеen reporting to probation.
{¶6} Mentch appeals, raising the following four assignments of error:
- The guilty verdict and conviction found by the jury against appellant were based upon insufficient evidence.
- The guilty verdict and conviction were against the manifest weight of the evidence.
The trial court erred in denying defendant‘s pretrial motion to dismiss defective complaint that failed to contain the necessary mens rea element. - The trial court erred in sentencing the defendant to a term of community control sanctions outside of open court.
{¶7} Because we find the third assignment of error dispositive of the appeal, we will address it first.
Defective Indictment
{¶8} In her third assignment of error, Mentch argues that the сomplaint failed to comply with
{¶9} The filing of a valid complaint invokes the jurisdiction of the municipal court. State v. Mbodji, 129 Ohio St.3d 325, 2011-Ohio-2880, 951 N.E.2d 1025, ¶ 12, citing State v. Miller, 47 Ohio App.3d 113, 114, 547 N.E.2d 399 (1st Dist.1988).
The complaint is a written statement of the essential facts constituting the offense charged. It shall also state the numerical designation of the applicable statute or ordinance. It shall be madе upon oath before any person authorized by law to administer oaths.
{¶10} Ohio courts have recognized that a complaint sufficiently satisfies
{¶11} ‘“The primary purpose of the charging instrument in a criminal prosecution is to inform the accused of the nature of the offеnse with which he or she is charged.“’ Cleveland v. Simpkins, 192 Ohio App.3d 808, 2011-Ohio-1249, 950 N.E.2d 982, ¶ 6 (8th Dist.), citing Akron v. Holland Oil Co., 146 Ohio App.3d 298, 765 N.E.2d 979 (9th Dist.2001).
{¶12} We review the validity of a complaint under de novo standard of review. Newburgh Hts. v. Hood, 8th Dist. Cuyahoga No. 84001, 2004-Ohio-4236, ¶ 5.
{¶13} Mentch argues that the complaint filed in this case was fatally flawed because it failed to include all the essential elеments of the crime charged. Specifically, Mentch argues that the complaint failed to set forth the mens rea element — a material element to the offense charged. We agree.
{¶14} In this case, the complaint rеferenced a violation of P.C.O. 636.02 but failed to specify the subsection. The complaint described the violation as follows: “Assault — to wit: did cause physical harm to the victim (Sari Feldman) by means of pulling her hair in the board office auditorium of the library at 2111 Snow Rd.”
{¶15} Under P.C.O. 636.02, there are two separate assault offenses listed. The ordinance provides in relevant part:
(a) No person shall knowingly cause or attempt to cause physical harm to another or to another‘s unborn.
(b) No person shall recklessly cause serious physical harm to another or to another‘s unborn.
(c) Whoever violates division (a) or (b) of this section is guilty of assault. Except as provided in
Ohio R.C. 2903.13(C) , assault is a misdemeanor of the first degree.
{¶17} The city counters that the complaint sufficiently notified Mentch of the charge, especially since “the complaint incorporated and identified the specific police report that was generated in connection with the complaint.” While this сourt has previously recognized that a police incident report attached as part of the complaint may satisfy the sufficiency requirement of
{¶18} Accordingly, because the complaint omits and fails to charge the culpable mental stаte of knowingly — an essential element of the crime of assault — it is fatally defective and fails to charge an offense. Mentch‘s conviction for assault is void and must be reversed. See Sampson at ¶ 29 (defective complaint rendered the conviction void).
{¶19} The third assignment of error is sustained.
{¶20} Based on our resolution of the third assignment of еrror, the remaining assignments of error are moot.
{¶21} Judgment reversed and conviction vacated.
It is ordered that appellant recover from appellee the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered thаt a special mandate issue out of this court directing the Parma 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.
MARY J. BOYLE, ADMINISTRATIVE JUDGE
TIM McCORMACK, J., DISSENTS WITH SEPARATE OPINION
TIM McCORMACK, J., DISSENTING:
{¶22} I respectfully dissent.
{¶23} On the evening of September 24, 2013, the Cuyahoga County Library Board convened a public meeting in Parma, Ohio. On the agenda was a long-standing, highly-contentious issue involving the fate of an historic library building that was located in a former residential mansion. The director of the library system, Sari Feldman, had long advocated selling off the transformed residence as outdated surplus library property. Library preservation advocates, including Frances Mentch, were vigorously oрposed to the abandonment of the former mansion. That evening, the Board voted to sell off the library-mansion. Immediately after the meeting adjourned, Frances Mentch approached Sari Feldman and began to speаk to her. According to several witnesses, the uncontroverted evidence reflects that shortly after their discourse began, Frances Mentch grabbed Sari Feldman‘s hair and jerked her head down. Frances Mentch quickly left the building after thе incident. She was stopped by a city of Parma police officer shortly after leaving the library grounds in her vehicle. The police officer issued her a citation complaint for “assault” by causing physical harm.
{¶24} Frances Mеntch was eventually convicted by a jury of assault. She was taken from the courtroom and immediately, summarily incarcerated for 30 days.
{¶25} Frances Mentch, now appeals her conviction in part on the basis that the citation and bill of particulars issued by the city of Parma did not specifically identify which of the two subsections of the Parma Codified Ordinances under which she was charged.
{¶27} The citation and bill of particulars stated “assault” as the offense. The citation noted the ordinance number, location, date, and time of the alleged offense. It gave details of the alleged act of assault. It specifiсally referenced the police report number. The city did not attach a copy of the actual police report.
{¶28} I would have strongly preferred that the additional step of attaching the detailed police report to the citation had been completed. That was not done. It weakens the argument for particularized notice compliance but does not change the reality that the notice of alleged violаtion was full and clear.
{¶29} Unfortunately, this entire episode is tragic. A woman who loves traditional libraries, in a moment of great emotion and anger, grabs the hair of a library administrator. She is charged and convicted of assault. A conviction that conflicts with how she conducts herself otherwise. Harshly, without regard to any presentence reflection, she is summarily incarcerated for a full month.