In Re Contempt of Morris , 110 Ohio App. 3d 475 ( 1996 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Defendant-appellant Daniel G. Morris ("appellant") appeals from the trial court's decision holding him in contempt of court.

Appellant assigns the following error for review:

"The trial court erred in holding the appellant in contempt for objecting twice during the recitation of the victim impact statement."

Finding the assignment of error to have merit, the trial court is reversed.

I Appellant, an attorney, represented a criminal defendant before the trial court. During the sentencing hearing, the victim's mother gave a victim impact statement. During the statement the following exchange took place:

"MRS. HAIRSTON: * * * Sex offenders use anything they have and can [sic] to bribe and groom a victim. I explained very carefully to Mr. Williams on the phone my son's history; and it comes — now that all of this comes to light, his relationship with my son, it is very apparent to me he chose my son specifically for those reasons —

"MR. MORRIS: Objection, your Honor.

"THE COURT: Mr. Morris, have a seat. This is the victim impact. This is no time to object.

"You have been citing all the Rules of Criminal Procedure throughout the trial and everything else. So, certainly, you are aware that you do not object during the time that she is making a victim impact statement. Have a seat.

"MR. MORRIS: Your Honor —

"THE COURT: Sit.

"MR. MORRIS: I object —

"THE COURT: Sit.

"I'm sorry.

"MRS. HAIRSTON: Mr. Williams was able to do all the things that he needed to do to gain the trust of a boy who was in trouble.

"He called this boy's mother. He called me twice at my home. He — When Brian's father came up from Texas to visit in Cleveland, he went to visit Brian at Cuyahoga Hills School for Boys and Mr. Williams arranged to work — he was working that weekend — however, he arranged to meet Brian's father to introduce himself to Brian's stepmother, to introduce himself to Brian's younger sister and to try and paint himself, once again, as a father figure, a good guy, and someone that was going to try to help Brian, and he filled all these things. To me, he is obviously very adept at using all the child rears you hear about on the news. He seems to be a well-established sex offender, and his history —

"MR. MORRIS: Your Honor, I must object. I don't understand any victim impact —

"THE COURT: You are in contempt of court. Your fine, at this point is $250. Have a seat.

"If you rise again, the next fine will be $500; if you rise again, the next fine will be $750; if you rise again, it is going to be $1,000 and six months incarceration."

Appellant later was given an opportunity to address the trial court regarding the contempt. When appellant attempted to explain why he objected to the victim impact statement, the trial court stated that appellant did wish to purge himself of the contempt and told appellant to pay the $250 fine before he left.

II Plaintiff-appellee state of Ohio has filed a motion to dismiss this appeal as moot because appellant paid his fine. The state argues that appellant completed his obligation to the trial court by paying his fine, thereby rendering his appeal moot.

"Where a defendant, convicted of a criminal offense, has voluntarily paid the fine or completed the sentence for that offense, an appeal is moot when no evidence is offered from which an inference can be drawn that the defendant will suffer some collateral disability or loss of civil rights from such judgment or conviction." State v. Wilson (1975), 41 Ohio St. 2d 236, 70 O.O.2d 431, 325 N.E.2d 236, syllabus.

Appellant was ordered by the trial court to pay his fine before he left the courtroom. Appellant was not given a choice of whether to complete his obligation to the trial court through payment of the fine. Compliance with such a directive is not a voluntary payment of a fine. The doctrine of mootness will be applied only where a defendant has voluntarily paid the fine.

The state's motion to dismiss is denied.

III In his assignment of error, appellant contends that the trial court abused its discretion by holding him in contempt. Appellant argues that he objected in the interests of his client when the victim's mother spoke of matters which appellant considered to be outside those permitted in victim impact statements pursuant to statute. Appellant maintains that his conduct was not threatening to the administration of justice.

Contempt of court consists of an act or omission substantially disrupting the judicial process in a particular case. In re Davis (1991), 77 Ohio App. 3d 257, 262,602 N.E.2d 270, 273-274. It is disobedience of an order of a court or conduct which brings the administration of justice into disrespect or which tends to embarrass, impede or obstruct a court in the performance of its functions. Denovchek v. TrumbullCty. Bd. of Commrs. (1988), 36 Ohio St. 3d 14, 15,520 N.E.2d 1362, 1363-1364. The law of contempt is intended to uphold and ensure the effective administration of justice. Of equal importance is the need to secure the dignity of the court and to affirm the supremacy of law. Cramer v. Petrie (1994), 70 Ohio St. 3d 131,133, 637 N.E.2d 882, 884-885.

A court has both inherent and statutory authority to punish a party for contempt. Zakany v. Zakany (1984), 9 Ohio St. 3d 192, 9 OBR 505, 459 N.E.2d 870. When reviewing a finding of contempt, an appellate court must apply an abuse of discretion standard.Dozer v. Dozer (1993), 88 Ohio App. 3d 296, 623 N.E.2d 1272.

Contempt is classified as either direct or indirect. Direct contempt is committed in the presence of or so near the court as to obstruct the due and orderly administration of justice. It may be punished summarily and without the filing of process. R.C. 2705.01; In re Lands (1946), 146 Ohio St. 589, 33 Ohio Op. 80,67 N.E.2d 433. Appellant's behavior took place in court during the sentencing hearing. Therefore, it was direct contempt.

Contempt is further categorized as civil or criminal, depending on the purpose of the sanction imposed. Where the sanction is intended to coerce compliance with the court's orders, it is civil contempt. Where the sanction is intended to punish the contemnor, the contempt is criminal. In re Contemptof Rossman (1992), 82 Ohio App. 3d 730, 732, 613 N.E.2d 241, 242. A criminal contempt is unavoidable punishment for past affronts to the court. State v. Christon (1990), 68 Ohio App. 3d 471, 478,589 N.E.2d 53, 57-58. Appellant was punished for a past act, so his contempt was criminal.

Appellant attempted to object to portions of a victim impact statement. R.C. 2947.051(B) permits statements to be made prior to sentencing regarding the impact of the offense on the victim. It refers to economic loss, physical injury, change in the victim's personal welfare or familial relationships, any psychological impact experienced by the victim or the victim's family, or any other information related to the impact of the offense upon the victim as is required by the court. The victim's mother referred to the characteristics of sexual offenders in general during her statement. Appellant attempted to object to these comments but was not allowed to do so by the court.

This court held in In re Contempt of Rossman (1992), 82 Ohio App. 3d 730, 613 N.E.2d 241, that an attorney's conduct of courteous requests to preserve objections or to have a sidebar conference is not contempt. The attorney's statements were not disrespectful or disruptive but were intended to protect his client's interests by making objections on the record.

The instant case is similar to Rossman. Appellant only attempted to make an objection but was not permitted to do so. Objections usually are necessary to preserve any claim of error for purposes of appeal. Objections also allow any possible error to be corrected during the trial court proceedings.

The record does not reflect behavior by appellant which was disruptive of the administration of justice. If the court had permitted the initial objection, only one objection would have taken place. Appellant's behavior did not constitute a substantial disruption of the judicial process. The trial court abused its discretion by finding appellant to be in contempt.

Appellant's assignment of error is well taken.

Judgment reversed.

NAHRA, J., concurs.

O'DONNELL, J., dissents.