Parma v. Kannenberg ( 2014 )

[Cite as Parma v. Kannenberg, 2014-Ohio-5681.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100370
CITY OF PARMA
PLAINTIFF-APPELLEE
vs.
CARLEEN M. KANNENBERG
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Parma Municipal Court
Case Nos. 12-CRB-03175, 12-CRB-03215,
12-CRB-03457, and 12-CRB-04794
BEFORE: Celebrezze, P.J., Keough, J., and Stewart, J.
RELEASED AND JOURNALIZED: December 24, 2014
ATTORNEY FOR APPELLANT
Paul A. Daher
Paul A. Daher & Associates
700 W. St. Clair Avenue
Suite 218
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy G. Dobeck
Parma Law Director
6611 Ridge Road
Parma, Ohio 44129
Richard A. Neff
Assistant Prosecuting Attorney
City of Parma
Law Department
5555 Powers Boulevard
Parma, Ohio 44129
FRANK D. CELEBREZZE, JR., P.J.:
{¶1} Appellant Carleen M. Kannenberg appeals her convictions in the Parma Municipal
Court for disorderly conduct, trespassing, open burning, and violation of a temporary protection
order that resulted from a dispute with a neighbor. She argues that her convictions are
unsupported by sufficient evidence and are against the manifest weight of the evidence. After a
thorough review of the record and law, we affirm.
I. Factual and Procedural History
{¶2} Gary and Kim Geyer lived at a home on Pleasant Valley Road in Parma, Ohio, for
22 years. In late 2011, appellant moved into a home next door. Problems arose between the
Geyers and appellant in the early summer of 2012. Ongoing issues resulted in a number of
criminal citations over the next year.
{¶3} The Geyers, concerned about the behavior they witnessed, sought an ex parte
temporary protection order (“TPO”) by filing a motion with the Cuyahoga County Common
Pleas Court. That request was granted on June 21, 2012. A hearing was scheduled on the
motion for July 2, 2012. Service of the order was not accomplished on appellant until June 26,
2012.
{¶4} On June 23, 2012, Kim Geyer called the police with a noise complaint at
approximately 6:45 a.m. A Parma police officer responded, arrested appellant, and issued a
citation for disorderly conduct at 7:16 a.m. Appellant posted bond and was released. The case
was prosecuted as Parma M.C. No. 12-CRB-03175.
{¶5} On June 26, 2012, Kim Geyer requested Parma police to respond three times. The
first incident resulted in appellant being cited for disturbing the peace at 1:08 p.m. At that time,
the officer served appellant with an official copy of the ex parte TPO obtained by the Geyers.
The police issued a second citation for criminal trespass in violation of a protection order at 2:05
p.m. The third time the police responded, no citation was issued, but appellant was transported
to the hospital for evaluation. These citations were prosecuted under Parma M.C. No.
12-CRB-03215.
{¶6} On July 5, 2012, Parma police again responded to a complaint from Kim Geyer. At
11:01 p.m., appellant was arrested and issued a citation for disorderly conduct while intoxicated.
She was also issued a citation for open burning after the fire department put out a fire in a fire pit
in her backyard twice. This case was prosecuted under Parma M.C. No. 12-CRB-03457.
{¶7} A criminal complaint was filed in the Parma Municipal Court on September 14,
2012, charging appellant with violating a protection order. It was assigned Parma M.C. No.
12-CRB-04794.
{¶8} On March 11, 2013, appellant’s behavior resulted in another citation for violating a
temporary restraining order. This was assigned Parma M.C. 13-CRB-01256.1 All cases were
consolidated for trial.
{¶9} A bench trial commenced on June 5, 2013. Kim Geyer testified first for the city of
Parma (the “City”). She testified that she grew up in the house she now lives in with her
husband. They bought the house 22 years ago from Kim’s parents. She testified that problems
began in the early summer of 2012 between her and her neighbor, appellant. She described
appellant’s behavior as bizarre and threatening. This included loud music and screaming
threats, cursing, and doing things purposefully to annoy them. Kim testified that, as a result, she
and her husband Gary sought and obtained a TPO, initially ex parte, on June 21, 2012, and then
after a hearing on July 2, 2012.
1
Appellant was found not guilty of this charge and this case is not part of the present appeal.
{¶10} Kim testified that on June 23, 2012, appellant was in her backyard in the early
morning playing loud music and shouting obscenities. She was arrested and cited for disorderly
conduct by Parma police officer Mike Yonek. He testified to hearing loud music and appellant
screaming obscenities on arrival.
{¶11} Kim also called the police complaining of loud noise on June 26, 2012. She
testified that appellant was playing loud music and shouting obscenities in the late morning.
Parma police officer James Manzo responded. He testified that, upon arrival, he heard loud
music from down the street and heard appellant shouting obscenities. He issued a citation for
disturbing the peace.
{¶12} Kim testified that she had to call the police again a little while later that same day
because appellant was in the Geyer’s yard staring menacingly in front of the Geyer’s large picture
window at the front of their house and tossing an object up and down as if threatening to throw it
through the window. Officer Manzo responded and reviewed video surveillance footage from
the Geyer’s home security system that documented this behavior. He issued appellant a citation
for trespassing and hand delivered a copy of the temporary protection order. He advised
appellant to stay off the Geyer’s property.
{¶13} Kim further testified that appellant’s behavior was disturbing and resulted in yet
another call to the police for help that day. According to her, appellant was then transported to
the hospital for evaluation. Parma police officer Thomas J. Kugler also testified to appellant’s
strange behavior and that she was transported to the hospital.
{¶14} Kim next testified about a July 5, 2012 incident when appellant was having a small
party. Appellant had lit a fire in a fire pit that was of concern to Kim due to a previous
out-of-control fire originating from the same place. This previous fire had burned out of control
and burned items on Kim’s property, including trees and grass and damaged her house. Police
and fire personnel responded. The fire department extinguished the fire, and the responding
officer issued a warning to appellant about open burning. Within a few minutes of the officers
leaving, appellant restarted the fire. Kim again called to report it. The fire department again
extinguished the fire, and appellant was cited for open burning. She was then arrested for
disorderly conduct while voluntarily intoxicated by responding officer Robert Curtin. He
testified that appellant would not calm down after he issued the citation and continued to shout
obscenities at him after warning her to stop.
{¶15} Kim testified that after this, appellant was quiet until September 13, 2012. On that
day, appellant was out in her yard playing loud music and shouting obscenities at the Geyers.
After the police observed video and audio evidence of appellant yelling at the Geyers and making
rude gestures at them, Officer Kugler issued a citation for violating a TPO.
{¶16} According to Kim, even this citation did not end the behavior. She testified that
appellant would park her car in her driveway next to the Geyer’s home so that she could see
directly into the Geyer’s living room. Appellant would then sit in the car and stare at them.
This behavior and video recordings of appellant stepping on the Geyer’s property prompted the
Parma police to issue an additional citation for violating a temporary protection order in March
2013. Parma police officer Eric Dougan testified that he responded to calls from Kim and
reviewed surveillance video time-stamped March 7 and March 11, 2013, which documented the
behavior. He issued a citation for violation of the TPO.
{¶17} Gary Geyer and friends of the Geyers, Terry Hess and Renee Gahan, also testified
to observing the odd behavior of appellant and hearing threats appellant uttered.
{¶18} At the close of the City’s case, the trial court granted appellant’s Crim.R. 29
motion in part. The judge found that the City had not demonstrated that appellant was
intoxicated during the July 5, 2012 incident that resulted in a citation for disorderly conduct
while voluntarily intoxicated. The court denied the motion as to the other charges.
{¶19} Appellant called several witnesses in her defense. First, Terry Rhodes testified
that he grew up next door to Kim Geyer in the house currently occupied by appellant. He stated
that he bought the house from his siblings after their parents died. He rented the house to John
Sworchek, and appellant lives in the house with John. Rhodes also testified that his girlfriend,
Cheryl Kilbane, has a daughter that is married to Keith Geyer, the Geyer’s son, and that they are
currently going through a divorce.
{¶20} Missy Toth, Rhodes’s half-sister, also testified on behalf of appellant. She
testified that she paid a visit to the house occupied by appellant on June 26, 2012, and observed
the odd behavior of appellant that resulted in appellant being transported to the hospital. She
also testified that she realized this is the type of behavior that Kim had to put up with every day.
{¶21} Finally, appellant testified. She stated that the Geyers were always calling the
police on her for nothing and that Kim hated Terry Rhodes and that is why all of this happened.
She explained that she was never cursing at the Geyer’s, but that she was on her phone in her
backyard exchanging hostile words with her ex-husband.
{¶22} The judge took the matter under consideration and set forth the verdicts on the
record on June 17, 2013. The court found appellant guilty of all remaining counts except the
March 2013 violation of a TPO. However, the journal entries that resulted from each case did
not accurately reflect what occurred — some indicated appellant pled guilty.2
{¶23} The trial court sentenced appellant on July 24, 2013. In 12-CRB-03794, she was
sentenced to 30 days in jail with 27 days suspended and credit for three days; subpoena costs
suspended; fined $250 with $175 in costs suspended; and three years of probation. Appellant
received a $10 fine for open burning in 12-CRB-03457, with court costs suspended. In
12-CRB-3175, appellant received a 30-day jail term with 27 days suspended and credit for three
days; $250 in costs with $175 suspended. In 12-CRB-03215, for criminal trespass and
disturbing the peace, she received a 10-day jail term with 10 days suspended as well as
three-years probation. She was fined $250 with $200 suspended as well as subpoena costs
suspended. For disturbing the peace, she was fined $20 in costs.
{¶24} For violating a TPO in 12-CRB-04794, she received a 180-day jail sentence with
90 days suspended and 90 days deferred pending a mental health evaluation. A fine of $1,000
was also imposed with $900 suspended, and three years of probation.3 Appellant then filed the
instant appeal raising two assignments of error.
I. The evidence is insufficient to sustain Appellant’s convictions.
II. Appellant’s convictions are against the manifest weight of the evidence.
II. Law and Analysis
A. Sufficiency
2
Some journal entries still indicate that appellant pled guilty even after this court remanded the cases twice
for correction, but appellant is not raising any argument about the accuracy of the entries.
3
The journal entries in these cases are confusing, wrong, and contradictory. The entries in some cases
indicate that appellant pled guilty to charges when, in fact, she was found guilty after a bench trial. One entry
indicates that a sentence of 90 days was deferred until a certain date. In order to be a final order, this court
interprets this order to mean that, on that date, appellant was to serve her jail term even though this may not be the
trial court’s intention, as expressed in the transcript.
{¶25} Appellant first claims her convictions are unsupported by sufficient evidence.
{¶26} When reviewing the sufficiency of the evidence to support a criminal conviction,
“[t]he 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.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
paragraph two of the syllabus. The evidence must be examined in a light most favorable to the
state.
{¶27} Appellant was convicted of disturbing the peace, disorderly conduct, criminal
trespass, open burning, and violating a protection order.
{¶28} Disorderly conduct is defined under Parma Codified Ordinance (“P.C.O.”)
648.04(a), in pertinent part as follows: “No person shall recklessly cause inconvenience,
annoyance or alarm to another, by * * * (2) Making unreasonable noise or offensively coarse
utterance, gesture or display, or communicating unwarranted and grossly abusive language to any
person * * *.”
{¶29} Appellant argues “the facts do not support disorderly conduct” because she “was
outside yelling obscenities and singing in her backyard” where she was “merely exercising her
First Amendment Right and was not harming the Geyers * * *.”
{¶30} Disorderly conduct proscriptions can have the undesired effect of chilling
constitutionally protected speech. Therefore, the Ohio Supreme Court set forth a required
analysis when interpreting whether certain speech violates a disorderly conduct statute or
ordinance. State v. Hoffman, 57 Ohio St.2d 129, 387 N.E.2d 239 (1979), paragraph one of the
syllabus (“A person may not be punished [for disorderly conduct] * * * for ‘recklessly caus[ing]
inconvenience, annoyance, or alarm to another,’ by making an ‘offensively coarse utterance’ or
‘communicating unwarranted and grossly abusive language to any person,’ unless the words
spoken are likely, by their very utterance, to inflict injury or provoke the average person to an
immediate retaliatory breach of the peace”). However, this applies only where the subject of the
speech has prompted governmental sanction, not the manner of speech. Fairborn v. Grills, 2d
Dist. Greene No. 92 CA 92, 1994 Ohio App. LEXIS 2467 (June 8, 1994).
[W]hen the disorderly conduct statute, or the identical * * * City Ordinance, is
being enforced as to the content of the defendant’s language, the trial court must
apply a First Amendment analysis to ensure that the defendant’s right to free
speech is not being infringed. However, this analysis is not necessary when the
defendant is charged with disorderly conduct based solely upon the manner of his
speech.
***
Where there is no evidence that the content of the defendant’s speech was
restricted by the enforcement of the disorderly conduct ordinance regulating
unreasonable noise, the First Amendment analysis for content restrictions on
speech is unnecessary, and the use of fighting words is not an element of the
offense. Accordingly, Fairborn is permitted to stop people from yelling
incessantly and thereby disturbing the peace in a residential area.
Id. at *5. See also Warrensville Hts. v. Brown, 8th Dist. Cuyahoga No. 89346, 2008-Ohio-126,
¶ 12; State v. Cunningham, 10th Dist. Franklin No. 06AP-145, 2006-Ohio-6373, ¶ 22.
{¶31} Here, appellant was convicted of disorderly conduct on June 23, 2012, for making
unreasonable noise at approximately 7:00 a.m. by playing loud music and screaming. The
police officer testified that he issued the citation when he observed appellant playing loud music
and shouting obscenities early in the morning in a residential neighborhood. The content of her
speech, while offensive to neighbors, is immaterial to the issuance of the citation in this case. It
was the manner of speech — excessive and unreasonable noise early in the morning — that
prompted the citation.
{¶32} Appellant was convicted of disturbing the peace on June 26, 2012. Disturbing the
peace is defined in P.C.O. 648.05(a):
No person shall disturb the good order and quiet of the Municipality by clamors or
noises, by intoxication, drunkenness, fighting, quarreling, wrangling, committing
assault, assault and battery, using obscene or profane language in the streets and
other public places to the annoyance of the citizens, or otherwise violate the
public peace by indecent and disorderly conduct, or by lewd and lascivious
behavior.
{¶33} Appellant claims that her actions of playing excessively loud music and shouting
obscenities are not the kinds of actions punishable under the ordinance. “The offense of
‘disturbing the peace’ has been understood, from its common law origin up to the present, to
include a wide variety of conduct which destroys or threatens public order and tranquility.”
State v. Cole, 7th Dist. Mahoning No. 01 CA 73, 2002-Ohio-5191, ¶ 20, citing United States v.
Woodard, 376 F.2d 136, 141 (7th Cir.1967). To determine whether some conduct breaches this
standard, courts look to what would be disturbing to a reasonable person viewing the surrounding
facts and circumstances. Id.{¶34} Kim Geyer testified she heard extremely loud music that was coming from
appellant’s backyard and that she could clearly make out the words being sung from inside her
home with the windows shut. The responding officer testified that he could clearly hear the
music from as far away as the main cross-street some distance away. Contrary to appellant’s
argument, this is the type of behavior meant to be criminalized by the statute.
{¶35} Again, appellant argues that she was merely exercising her First Amendment rights
by playing music. However, the ordinance at issue here does not limit a person’s speech; it
limits the manner of that speech — specifically, its volume. Appellant’s conduct constituted a
disturbance of the peace where she played music so loud that it could be heard at the end of the
block.
{¶36} Appellant was also convicted of criminal trespass for her actions on June 26, 2012.
Criminal trespass is defined in P.C.O. 642.12(a)(1) in pertinent part: “No person, without
privilege to do so, shall * * * [k]nowingly enter or remain on the land or premises of another * *
*.”
{¶37} Appellant argues that there is no evidence of any trespass because the surveillance
video viewed by the police when determining whether to issue a citation was not shown at trial
and the property boundary was in dispute. Appellant agues that the lack of video evidence
requires reversal. This argument ignores the testimony of Kim Geyer. Her testimony
establishes that appellant knowingly entered onto the Geyers’ property. She testified that
appellant was standing in front of a window that overlooked the Geyers’ front lawn throwing an
object up and down. Kim testified this was clearly on her property. Viewing this evidence in a
light favorable to the state, all the elements of criminal trespass were adduced at trial.
{¶38} Appellant was also convicted of open burning from her actions on July 5, 2012.
Open burning is defined in pertinent part in P.C.O. 660.46(c): “No person or property owner
shall cause or allow open burning in a restricted area except as provided in divisions (b) to (d) of
this section or in Ohio R.C. 3704.11.”4 P.C.O. 660.46(a)(1)(I) defines “open burning” as
the burning of any materials wherein air contaminants resulting from combustion
are emitted directly into the ambient air without passing through a stack or
chimney. “Open burning” includes the burning of any refuse or salvageable
material in any device not subject to or designed specifically to comply with the
requirements of O.A.C. 3745-17-09 or 3745-17-10.
4
There are exceptions set forth in P.C.O. 660.46(c)(2) not argued to be relevant here.
{¶39} Appellant claims there is insufficient evidence for this conviction because the
police officer who issued the citation did not see the fire. The Parma police officer who issued
the citation arrived on the scene after the fire department had extinguished the fire the second
time.
{¶40} Again, this ignores the testimony of Kim Geyer. She testified that appellant relit
the fire within moments of the fire and police department personnel departing after extinguishing
the first fire.
{¶41} Finally, appellant was convicted of violating a protection order. P.C.O.
636.045(c)(1) provides: “No person shall recklessly violate the terms of any of the following: (A)
[a] protection order issued or consent agreement approved pursuant to Ohio R.C. 2919.26 or
Ohio R.C. 3113.31; (B) [a] protection order issued pursuant to Ohio R.C. 2903.213 or Ohio R.C.
2903.214 * * *.”
{¶42} Appellant’s claim here again relies on the fact that the police officer who issued the
citation did not personally observe any wrongdoing, and the surveillance video viewed by the
officer was not produced and played at trial. This ignores the testimony of Kim and Gary Geyer,
who both testified that appellant, fully aware of the TPO, yelled obscenities and directed rude
gestures at the Geyers. Surveillance video of this conduct was duplicative of testimony adduced
at trial.
{¶43} The TPO had a no-contact order, which was violated according to the testimony
adduced at trial. Therefore, there is sufficient evidence for conviction.
B. Manifest Weight
{¶44} Appellant also claims that her convictions are against the manifest weight of the
evidence.
{¶45} In reviewing a claim that a verdict is against the manifest weight of the evidence,
this court considers the entire record, weighs the evidence and all reasonable inferences,
considers the credibility of witnesses and, in considering conflicts in the evidence, determines
whether the trier of fact clearly lost its way and created such a manifest miscarriage of justice that
the conviction must be reversed and a new trial ordered. State v. Thompkins, 78 Ohio St.3d 380,
387, 678 N.E.2d 541 (1997). In doing so, we remain mindful that the weight to be given the
evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass,
10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. This gives the trier of
fact the authority to “believe or disbelieve any witness or accept part of what a witness says and
reject the rest.” State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964). The discretionary
power to grant a new trial should be exercised only in the exceptional case in which the evidence
weighs heavily against the conviction. Thompkins at 387.
{¶46} Reviewing the weight of the evidence produced at trial, the trial court did not lose
its way in convicting appellant of the above crimes. Appellant’s menacing and disturbing actions,
as set forth by Kim Geyer, were corroborated by the testimony of Parma police officers in a few
instances. The testimony of other witnesses also documented this behavior.
{¶47} Appellant claims that the Geyers’ complaints are the oversensitive reactions of
people who have animosity for her landlord. The July 26, 2012 timeline of events documents
how that is not the case. After a visit from the police prompted by appellant’s extremely loud
music, appellant was observed by Kim in the Geyers’ front yard menacing them. This prompted
a second call to the police and a second citation. The same evening, additional odd behavior
designed to annoy the Geyers resulted in a third call. The police then transported appellant to
the hospital for evaluation. The Geyers were not the only ones to testify about appellant’s
harassing and annoying behavior on that day. Kim’s testimony was corroborated by the
responding police officers and the landlord’s half-sister. As a result, the weight of the evidence
supports these convictions.
III. Conclusion
{¶48} Appellant’s convictions for disorderly conduct, disturbing the peace, criminal
trespass, open burning, and violating a TPO are supported by sufficient evidence and are not
against the manifest weight of the evidence.
{¶49} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Parma Municipal
Court to carry this judgment into execution. The defendant’s convictions having been affirmed,
any bail pending appeal is terminated. Case remanded to the trial court for execution of
sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and
MELODY J. STEWART, J., CONCUR