744 N.E.2d 271 | Ohio Ct. App. | 2000
At the close of jury instructions in the underlying criminal case, the court excused the jury at 5:33 p.m., with the sole instruction that it elect a foreperson. The court left to the jury the decision whether it should begin deliberations that night or adjourn for the evening. The following day, the jury deliberated until 11:00 a.m., at which time it informed the court it had reached a verdict. The court contacted contemnor's office at 11:15 a.m., but a secretary informed the court's bailiff that contemnor would be unavailable until 1:30 p.m. The court overheard this conversation and asked that one of contemnor's associates who sat in on the trial appear to take the verdict. The court advised his bailiff to inform contemnor's secretary that if contemnor did not appear promptly he might be held in contempt.
The court decided to break for lunch at 12:10 p.m. at that time, contemnor had still not appeared. Contemnor's associate appeared at 12:15 a.m. and said that he had no idea he might be needed to cover for contemnor. When the court reconvened at 1:30 p.m., contemnor was present. The court heard the verdict and discharged the jury. After agreeing to defer sentencing pending receipt of a presentence report, the court proceeded to ask contemnor why he had not been available when the jury first announced its verdict. The court reminded contemnor that it had instructed counsel for both sides to be here within ten minutes of the verdict. Contemnor told the court he had a long-standing appointment and had arranged for his associate to back him up. Contemnor said that he arrived in court at 12:30 p.m., apparently just after the judge left the courtroom. Contemnor told the court his long-standing appointment was a luncheon engagement and apologized for the inconvenience he caused to the jury and the court.
In a contempt entry, the court found contemnor in direct contempt because it considered contemnor's conduct to be a contemptuous act personally directed at the Court itself, which all seriously and inexcusably inconvenienced the jury. The court also found contemnor guilty beyond a reasonable doubt of indirect *501 contempt of court for disobedience of a Court order and for his misbehavior as an officer of the Court in the performance of his official duties. The court concluded by characterizing contemnor's conduct as egregious and contemptuous and found his behavior so obnoxious that no other option but contempt would deter his future conduct. The court fined contemnor $500 and ordered him to be held in county jail for twenty hours, that period of time representing the approximate time [contemnor] wasted of the twelve members of the jury. The court later released contemnor from jail upon his representation that he would perform twenty-four hours of community service for an area church.
Contemnor's first argument is that the court abused its discretion by finding his failure to be available to hear the jury return its verdict as both direct and indirect contempt. He maintains the conduct amounted to indirect contempt, and the court failed to afford him notice of the contempt charge and a hearing.
R.C.
Indirect contempt of court is one committed outside the presence of the court but which also tends to obstruct the due and orderly administration of justice. In re Lands (1946)
This court has consistently held that the arriving late to a hearing or not appearing at all constitutes an indirect contempt of the court. See, e.g., Cleveland v. Ramsey (1988),
In State v. Moody, the Twelfth District Court of Appeals considered a very similar factual situation. Moody, the accused in a criminal trial, absented himself during jury deliberations to take his brother to a medical appointment. During *502
Moody's absence, the jury submitted two questions to the court. The trial court waited about one hour before proceeding to answer the questions in Moody's absence. The trial court then found Moody in direct contempt and summarily ordered him incarcerated. The court of appeals reversed the contempt finding, holding [t]hat the failure to appear at or arriving late to a hearing before the court occurs in the constructive presence of the court rather than the immediate presence of the court and is treated as indirect contempt. State v. Moody,
Likewise, in Weiland v. Industrial Commission (1956),
part of the alleged misconduct was committed on the trip court itself. This was in the nature o an indirect contempt, and the appellant was entitled to an opportunity to proffer evidence to show any extenuating or even exculpatory circumstances.
166 Ohio St. at 66 .
Contemnor's inaccessibility necessarily occurred outside the * * and hence courtroom. We therefore find the court erred by classifying contemnor's conduct as a direct contempt.1 Because contemnor's conduct did not constitute direct contempt, he was entitled to the procedural protections set forth in R.C.
Judgment reversed and remanded.
This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion.
It is, therefore, considered that said appellant recover of said appellee his costs herein.
It is ordered that a special mandate be sent to said 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.
ANNE L. KILBANE, J. KENNETH A. ROCCO, J., CONCURS.