State v. GetzingerState v. Getzinger
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
{¶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 (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
{¶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
{¶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).
{¶8} On March 22, 2012, the trial court filed another judgment entry
{¶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
{¶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).
{¶12} The foregoing “Statement of Evidence” contained a certificate of
{¶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.
First Assignment of Error
{¶14} In his first assignment of error, Getzinger claims the complaint alleging he committed disorderly conduct in violation of
{¶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
{¶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
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
{¶18} Before we reach the merits of this assignment of error we note that
{¶19} If no transcript 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).
{¶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
{¶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
{¶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
{¶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
{¶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