STATE OF OHIO v. AALIYAH WINTERS
Appellate Case No. 29157
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
Rendered on the 17th day of June, 2022.
2022-Ohio-2061
LEWIS, J.
Trial Court Case No. CRB 2100049 (Criminal Appeal from Municipal Court)
JAMES S. SWEENEY, Atty. Reg. No. 0086402, 285 South Liberty Street, Powell, Ohio 43065 Attorney for Defendant-Appellant
LEWIS, J.
I. Facts and Procedural History
{¶ 2} Winters was charged by complaint with one count of disorderly conduct, in violation of
{¶ 3} Winters testified that on the evening of January 6, 2021, she went to a Dollar Tree store with her two-year-old daughter to buy a pop. When Winters entered the store, she was on the phone and was told by an employee to hurry up, because the store was going to close in four minutes. Winters observed it was 8:34 p.m. and asked the employee what time the store closed. The employee indicated the store closed at 9 p.m.
{¶ 4} Winters told the person she was on the phone with that she hated when employees try to close the stores early just because they want to get home. Apparently having overheard Winters’ comment, the employee responded to Winters. While initially
{¶ 5} Deputy Tori Bargo of the Montgomery County Sheriff‘s Office testified that she responded to a dispatch regarding a disorderly subject refusing to leave the store and arguing with employees. When she arrived, Bargo spoke with the employee of the store, who indicated that the argument with Winters started because she refused to put a mask on her and her daughter. At the time, the COVID pandemic was ongoing and the mask mandate was in effect. As a result of refusing to put on a mask and having a verbal altercation with the employee, Winters was asked to leave the store. According to Winters, she was wearing a mask that day but her two-year-old daughter was not because Winters did not think that she was required to wear one.
{¶ 6} Bargo located Winters in the middle of the store. At that time, Winters was not arguing with the employee but was yelling on her phone very loudly about the employee. Bargo advised Winters that she needed to speak with her but that they needed to do it outside the store, because the employee wanted Winters to leave. Winters told Bargo that neither she nor the employee could make her leave until it was closing time or she got her pop.
{¶ 7} Bargo tried to explain to Winters that she would listen to Winters’ statements but that they had to get outside the store. Bargo informed Winters that she needed to stop screaming and cursing at the employee, to whomever was on the phone, and at Bargo because Winters was causing a scene and being disorderly. Bargo told Winters
{¶ 8} Although Winters eventually agreed to leave the store and moved toward the exit, she changed her mind and stopped, refusing to leave. As Winters and Bargo progressed toward the exit, Winters again engaged in a verbal altercation with the employee. After Bargo told the employee to walk away, she turned her attention back to Winters, placed a hand on Winters’ left arm, and told Winters it was time to leave and to go outside. Winters told Bargo not to touch her and used profane language directed at Bargo. Bargo testified that things escalated from there.
{¶ 9} According to Bargo, when she and Winters approached the front of the store, instead of turning left to go toward the exit, Winters went straight and advanced toward the employee who was approximately five feet away, but Bargo grabbed Winters’ coat to stop her. Winters denied that she made any movement towards the employee, however, she did admit that she was still arguing with the employee during that time and both parties were mad.
{¶ 10} Bargo testified that she attempted to place Winters up against a cart but
{¶ 11} Once Winters was removed from the store, she was placed in the backseat of Bargo‘s police cruiser, which was audio- and video-recorded. While in the backseat, Winters spoke with another officer, Sergeant Vitali, who had arrived on scene. When Sgt. Vitali asked Winters why she did not just leave the store when they asked her to, she explained that she was mad and just wanted to tell her story. She admitted that she should have just left the store. Winters admitted at trial that Bargo asked her to leave the store “like twice” and she did not immediately leave the store.
{¶ 12} Upon the close of the State‘s case-in-chief, Winters made a general
{¶ 13} Winters raises the following three assignment of errors:
THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT THE DEFENDANT‘S MOTION FOR ACQUITTAL AS THE GUILTY VERDICT AT THE TRIAL COURT WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.
THE TRIAL COURT ERRED WHEN IT ENTERED A JUDGMENT AGAINST THE APPELLANT WHEN THE JUDGMENT WAS NOT SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE.
APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL TO A DEGREE THAT SHE DID NOT RECEIVE A FAIR TRIAL.
II. Preliminary Issues
{¶ 14} Winters argues that because she was charged under
{¶ 15} Pursuant to
{¶ 17} In this case, Winters was not arrested at the time of the offense but was instead issued a summons. A complaint was sworn, signed, dated, and filed with the Vandalia Municipal Court. The complaint states, in pertinent part, that Winters did “cause inconvenience, annoyance, and alarm to another by insulting, taunting, or challenging another, which conduct is likely to provoke a response. To wit: continuing to argue w/employees and attempting to initiate a fight in violation of Section 2917.11A3 of the [Ohio Revised Code].” The complaint does not include any mention of the level of the offense. Nor did the complaint identify subsection (E)(3)(a) or include language that Winters persisted in disorderly conduct after reasonable warning or request to desist. As
{¶ 18} Amendments or variances may be made to the form or substance of a complaint, but changes in the name or identity of the crime charged are not permitted.
{¶ 19} It appears that all parties were under the impression that Winters was charged under
{¶ 20} Winters did not directly assign as error the erroneous degree of conviction, but because there is a dispute as to what elements the State was required to prove at trial based on the charging document, we will sua sponte take notice of the obvious defect that exists in this case pursuant to
{¶ 21} We find plain error here. Winters’ conviction for a higher level offense not properly charged, coupled with a sentence that is unauthorized for the offense for which she was in fact charged, resulted in a manifest injustice. According to the complaint, the highest level of offense for which Winters could be convicted was disorderly conduct, a minor misdemeanor. As a result, when considering Winters’ assignments of error, we will confine our analysis to the offense for which she was charged, disorderly conduct under
III. Sufficiency of the Evidence
{¶ 22} In her first assignment of error, Winters alleges that the trial court erred by
{¶ 23} Under
{¶ 24} A sufficiency of the evidence argument disputes whether the prosecution has presented adequate evidence on each element of the offense to permit the case to go to the jury or to sustain the verdict as a matter of law. State v. Brock, 2019-Ohio-3116, 140 N.E.3d 1239, ¶ 16 (2d Dist.). Our role when reviewing the sufficiency of the evidence to support a conviction is to “examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.”
{¶ 25} “Punishment for disorderly conduct based on spoken words is prohibited unless those words amount to ‘fighting words.‘” City of Middletown v. Carpenter, 12th Dist. Butler No. CA2006-01-004, 2006-Ohio-3625, ¶ 14. “Fighting words are those ‘which by their very utterance inflict injury or tend to incite an immediate breach of the peace.‘” State v. Phipps, 58 Ohio St.2d 271, 278, 389 N.E.2d 1128 (1979) quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). In determining whether one‘s language amounts to fighting words, “one must look at the circumstances surrounding such utterance.” State v. Presley, 81 Ohio App.3d 721, 724, 612 N.E.2d 353 (12th Dist.1992).
{¶ 26} A conviction for disorderly conduct under
{¶ 27} Here, the prosecution‘s evidence in its case-in-chief was legally sufficient to support a finding that Winters violated
{¶ 28} Furthermore, Winters acknowledged to Sgt. Vitali on the cruiser video recording that Bargo told her more than once to leave the store and admitted that she should have left immediately but did not. She also told Sgt. Vitali that she did not go
{¶ 29} Considering Bargo‘s testimony and the statements made by Winters on the cruiser video recording, Winters’ conviction was not based solely upon the content of her speech, but also upon her conduct under the circumstances. While the specific words Winters uttered were not all identified, it is clear that she was arguing loudly with the employee, swearing at the employee and at Bargo, and refusing to comply with commands; both the employee and Winters were mad and repeatedly approached each other. Winters and the employee were antagonistic to each other and repeatedly engaged in verbal altercations with each other even after being told to stop, and Bargo had to forcibly detain Winters to prevent a violent physical altercation. Viewing the evidence in a light most favorable to the prosecution, the trier of fact could have found Winters guilty based on the combination of her words and conduct, which were likely to provoke a violent response. Accordingly, we overrule her first assignment of error.
IV. Manifest Weight of the Evidence
{¶ 30} In her second assignment of error, Winters alleges that her conviction was against the manifest weight of the evidence because the State failed to prove Winters used fighting words in order to support her conviction.
{¶ 31} “To warrant a reversal from a bench trial verdict under the manifest weight of the evidence claim, it must be determined that the trial court clearly lost its way and
{¶ 32} In addition to the evidence addressed in our analysis above for the sufficiency of the evidence, additional evidence was presented that further supported Winters’ conviction under the manifest weight standard. Specifically, Bargo described the environment as “very hostile” and she observed “physical danger cues.” She described Winters as using profane language directed at both the employee and Bargo and being very loud, and she noted that there were challenges with veiled threats during the encounter.
{¶ 33} While Bargo testified that Winters advanced toward the employee at the front of the store, Winters denied that she made any movement towards the employee. She did admit, however, that she was still arguing with the employee during that time and both parties were mad. It is well-established that, when conflicting evidence is
{¶ 34} Based upon our review of the combination of Winters’ words and conduct, we cannot say that the trial court “lost its way” or created a “manifest miscarriage of justice” when the trial court found Winters guilty. Winters’ second assignment of error is overruled.
V. Ineffective Assistance of Counsel
{¶ 35} In her third assignment of error, Winters claims that she received ineffective assistance of counsel for counsel‘s failing to file a request for discovery. The State responds that the record does not indicate defense counsel failed to receive all available discovery. According to the State, the prosecutor‘s office has an open file discovery policy such that both parties use the court‘s file, which contains all discovery within it.
{¶ 36} In order to prevail on an ineffective assistance of counsel claim, Winters must prove that her attorney was ineffective under the test in Strickland v. Washington,
{¶ 37} If the first prong is met, then the defendant must show that the deficient performance prejudiced the defense. Id. at 687. To demonstrate prejudice, “the defendant must prove that there exists a reasonable probability that, were it not for counsel‘s errors, the result of the trial would have been different.” State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1998), paragraph one of the syllabus. An ineffective assistance of counsel claim cannot be predicated upon vague speculations of prejudice. State v. Otte, 74 Ohio St.3d 555, 566, 660 N.E.2d 711 (1996). The “prejudice must not be presumed, but rather must be affirmatively shown.” State v. Saultz, 4th Dist. Ross No. 09CA3133, 2011-Ohio-2018, ¶ 21. The failure to prove either prong of the Strickland two-part test makes it unnecessary for a court to consider the other prong. State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000), citing Strickland at 697.
{¶ 38}
{¶ 39} Although the State alleges that the Vandalia Municipal Court Prosecutor‘s Office has an open file discovery policy, there is no record of such a policy available to this Court. However, the record suggests that defense counsel was fully informed of the evidence against Winters and was prepared for trial. Defense counsel filed a praecipe and summons for the State‘s only witness, Deputy Bargo, to attend both a pretrial and the trial on defendant‘s behalf. Bargo was ordered to bring with her to the pretrial “any cruiser cam, audio recordings, digital images taken by Sgt. Vitali; action response report.” Notably, defense counsel‘s subpoena duces tecum specifically requested Sgt. Vitali‘s photographs, which defense counsel presumably would have learned through discovery, particularly since neither Sgt. Vitali nor his photographs were mentioned in the filed complaint. Defense counsel likewise filed a praecipe and summons for Doneva Battigaglia for trial who was identified in the case file as one of the store clerks, but was
{¶ 40} A review of the docket and a copy of the transcript demonstrate that neither party brought to the trial court‘s attention that discovery was not satisfied. Defense counsel did not appear surprised by any of the testimony or single piece of evidence the State produced at trial. On the contrary, defense counsel seemed familiar with the case and appropriately cross-examined the State‘s only witness. Counsel also reasonably presented Winters’ testimony as a defense.
{¶ 41} Based on our review of the record, under these circumstances, Winters has failed to establish that the failure of her counsel to request discovery has resulted in actual prejudice or that filing a request for discovery would have changed the outcome of the case. The third assignment of error is overruled.
VI. Sentencing
{¶ 42} Having modified and affirmed Winters’ conviction to a minor misdemeanor offense, we must address her sentence. In addition to imposing court costs for a minor misdemeanor offense, a trial court may sentence an offender to any financial sanction or combination of financial sanctions that does not exceed 150 dollars.
{¶ 43} Because Winters’ conviction is modified to a minor misdemeanor, her sentence for 30 days suspended jail time cannot be imposed and must be vacated. The
VII. Conclusion
{¶ 44} In sum, we conclude that the complaint only charged disorderly conduct as a minor misdemeanor offense and, therefore, Winters could only be convicted of the lesser degree offense, rather than a fourth-degree misdemeanor. Because there was sufficient evidence to support a conviction for a minor misdemeanor disorderly conduct charge and that conviction was not against the manifest weight of the evidence, we modify Winters’ conviction for disorderly conduct to a conviction for a minor misdemeanor disorderly conduct. The 30-day suspended jail sentence is vacated but the judgment of the trial court is affirmed in all other respects, as modified.
{¶ 45} The judgment of the trial court is vacated in part and affirmed as modified.
TUCKER, P.J. and WELBAUM, J., concur.
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Erik R. Blaine
James S. Sweeney
Hon. Cynthia M. Heck