State v. Stafford ( 2013 )

[Cite as State v. Stafford, 2013-Ohio-4356.]
STATE OF OHIO, COLUMBIANA COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 12 CO 24)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
ALICIA STAFFORD )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Municipal Court
of Columbiana County, Ohio
Case No. 12 TRC 2082
JUDGMENT: Reversed.
Contempt Citation Dismissed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Robert Herron
Columbiana County Prosecutor
Atty. Megan Payne
Assistant Prosecuting Attorney
105 South Market Street
Lisbon, Ohio 44432
For Defendant-Appellant: Atty. Douglas A. King
Hartford, Dickey & King Co., LPA
91 West Taggart Street
P.O. Box 85
East Palestine, Ohio 44113
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Dated: September 26, 2013
[Cite as State v. Stafford, 2013-Ohio-4356.]
WAITE, J.
{¶1} Appellant Alicia Stafford was charged in the Columbiana County
Municipal Court with operating a motor vehicle while under the influence of alcohol or
drugs (OVI) and driving outside marked lanes. At the pre-trial hearing, the trial judge
believed that Appellant presented herself to the court while under the influence of
drugs or alcohol and ordered a drug test to be performed immediately. The judge
interpreted the results as positive for methamphetamines. The court then cited
Appellant for direct contempt and imposed 30 days in jail, effective immediately. She
now appeals the contempt citation. Appellant argues that she could not be convicted
of contempt because she did not violate any court order, that the 30-day jail term was
too harsh, and that the drug test violated her rights under the Fourth Amendment.
Although we do not completely adopt any of Appellant's arguments, we have
determined that the contempt charge is not supported by the record. The results of
the drug test are not part of the record, and Appellee does not present any particular
legal basis for the administration of the test as part of a pre-trial hearing. Although
the record reflects that the trial judge could have properly cited Appellant for
contempt because her apparent intoxication prevented the pre-trial hearing from
continuing, the contempt conviction was explicitly based on a drug test that is not part
of the record. Therefore, Appellant's first and third assignments of error are
meritorious. The judgment of the trial court is reversed and the contempt charge is
dismissed.
{¶2} On April 22, 2012, Appellant was cited in New Waterford, Ohio, for OVI,
a violation of R.C. 4511.19(A)(1), (9), and for driving outside of marked lanes, a
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violation of R.C. 4511.33. This was Appellant's second OVI offense within six years.
She appeared in court on April 24, 2012, and was released on a $1,000 bond. Pre-
trial was scheduled for May 3, 2012.
{¶3} Appellant appeared in court on the day of the pre-trial hearing showing
signs that she could not fully participate in the hearing. The court immediately
ordered some type of drug test to be administered. There are no actual details about
this drug test in the record, nor can the results of the test be found. The trial judge
believed that the results of the drug test indicated a positive result for
methamphetamines. Based on the results of the drug test, the court held Appellant
in direct contempt for appearing in an impaired condition. The court imposed a 30-
day jail term and ordered Appellant be taken directly to jail. Pre-trial on the original
charges was reset for May 17, 2012. The court filed the judgment entry of contempt
on May 3, 2012.
{¶4} The prosecutor and Appellant later entered a Crim.R. 11 plea
agreement on the OVI and marked lanes charges. Appellant appeared in court on
May 17, 2012, to plead no contest to the two criminal charges. The court engaged in
a plea colloquy and accepted the change of plea. The court imposed 180 days of jail
time, with 166 suspended, and credit was given for 14 days. The court also imposed
a fine, a license suspension, probation, and community service. The court entered its
judgment on May 17, 2012, and this appeal followed. Appellant has not yet served
the remaining jail time on her contempt conviction.
ASSIGNMENTS OF ERROR NOS. 1 AND 3
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THE TRIAL COURT ERRED IN FINDING THE APPELLANT GUILTY
OF DIRECT CRIMINAL CONTEMPT.
THE TRIAL COURT ERRED, ABUSED ITS DISCRETION AND
VIOLATED DEFENDANT'S DUE PROCESS AND CONSTITUTIONAL
RIGHTS WHEN IT ORDERED DEFENDANT TO SUBMIT TO AN
INFORMAL DRUG TEST.
{¶5} Appellant contends that arriving in court under the influence of
methamphetamines, without further evidence that she disobeyed a court order or
disrupted court proceedings, cannot be sufficient to support a charge of direct
criminal contempt. Appellant also argues that it was improper to base the contempt
conviction on a drug test that cannot be justified by any rule or statute and that is not
substantiated by the record. Appellant believes that the Fourth Amendment's
prohibition against unreasonable searches and seizures should have prevented the
court from ordering an immediate drug test and using the instant results of that test to
convict her of contempt.
{¶6} Contempt proceedings are typically classified as civil or criminal, based
on the purpose of the sanctions imposed. State v. Kilbane, 61 Ohio St.2d 201, 205,
400 N.E.2d 386 (1980). If the sanctions are intended to coerce the contemnor to
comply with lawful orders of the court, the contempt proceeding is civil. Id. at 204-
205. On the other hand, if the punishment is punitive in nature and is designed to
vindicate the court's authority, the contempt proceeding is criminal. Id. “[C]ivil
contempts are characterized as violations against the party for whose benefit the
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order was made, whereas criminal contempts are most often described as offenses
against the dignity or process of the court.” State ex rel. Corn v. Russo, 90 Ohio
St.3d 551, 555, 740 N.E.2d 265 (2001).
{¶7} Courts distinguish not only between civil and criminal contempt, but
also between indirect and direct contempt. Indirect contempt occurs outside the
presence of the court. In re Lands, 146 Ohio St. 589, 595, 67 N.E.2d 433 (1946).
Direct contempt occurs in the presence of the court and has been defined to include
“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. Bd. of Trumbull Cty. Commrs., 36 Ohio St.3d 14, 15, 520 N.E.2d 1362(1988), quoting Windham Bank v. Tomaszczyk, 27 Ohio St.2d 55, 56, 271 N.E.2d
815 (1971). “Courts, in their sound discretion, have the power to determine the kind
and character of conduct which constitutes direct contempt of court.” Kilbane at
paragraph one of the syllabus.
{¶8} Direct contempt is defined in R.C. 2705.01 as “misbehavior in the
presence of or so near the court or judge as to obstruct the administration of justice.”
R.C. 2705.01; Kilbane at 204. It has been said that R.C. 2705.01 “merely restates
the inherent power of a court to summarily punish contemptuous acts committed in
the presence of the court.” In re Carroll, 28 Ohio App.3d 6, 8, 501 N.E.2d 1204 (8th
Dist.1985), fn. 5.
{¶9} A court may summarily punish a person for direct contempt on two
conditions: first, the judge must have personal knowledge of the disruptive conduct
“acquired by his own observation of the contemptuous conduct.” In re Oliver, 333
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U.S. 257, 275, 68 S.Ct. 499, 92 L.Ed. 682 (1948); R.C. 2705.01. Second, the
conduct must pose “an open threat to the orderly procedure of the court and such a
flagrant defiance of the person and presence of the judge before the public” that, if
“not instantly suppressed and punished, demoralization of the court's authority will
follow.” Oliver at 275; R.C. 2705.01; In re Thomas, 1st Dist. No. C-030429, 2004-
Ohio-373. Direct contempt of court occurs in a way so closely related to the court
itself that a finding may occur summarily, and the court is not required to provide the
contemnor with a hearing. In re Purola, 75 Ohio App.3d 306, 596 N.E.2d 1140 (3d
Dist.1991).
{¶10} It is apparent from the basic principles of contempt law that a court may
punish a person for direct contempt who has threatened or disrupted court
proceedings, even if the person did not specifically disobey any particular order
issued before or during the proceeding. “[The defendant's] acts of interrupting the
proceedings and of leaving the courtroom while the court rendered its decision
occurred in the judge's presence and required immediate punishment to vindicate the
court's authority.” State v. Stegall, 1st Dist. Nos. C–110767, C–120112, C–120113,
2012-Ohio-3792, ¶41. A person may also be held in contempt for failure to appear,
or even arriving late, at a hearing. R.C. 2705.02; State v. Moody, 116 Ohio App.3d
176, 181, 687 N.E.2d 320 (12th Dist.1996). We see no significant distinction
between failing to appear at a hearing and voluntarily impairing one's ability to
participate in a hearing.
{¶11} Appellant cites two cases in support of her argument that only direct
violation of a court order may be punished by direct contempt. In State v. Dumas, 7th
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Dist. No. 10-MA-50, 2011-Ohio-1003, the defendant was held in direct contempt for
“contumacious conduct” and “contemptuous comments” directed at the court. Id. at
¶46. This case does not, however, advance Appellant's argument, since we upheld
the trial court's direct contempt conviction and the matter did not involve a direct
violation of a court order. In In re Kafantaris, 7th Dist. 07-CO-28, 2009-Ohio-4814, an
attorney was cited with direct criminal contempt for repeatedly disobeying the court's
orders regarding evidence, his inappropriate questioning of witnesses, interrupting
the flow of the trial, and for an outburst during a murder trial, in front of the jury, that
he had a videotape proving that someone else committed the murder. Once again,
we upheld the direct contempt conviction, and we fail to understand why Appellant
attempts to rely on In re Kafantaris to support her arguments on appeal. If Appellant
is contending that only the actions of contempt described in these two cases may be
punished as direct contempt, she is mistaken. These two cases provide only a few
examples of the wide variety of situations that may constitute direct contempt of
court. It is generally left to the judge's own discretion to determine what actions are
so disruptive that the original proceeding must be stopped and the actions will result,
instead in direct contempt proceedings.
{¶12} In Appellant's case, if the trial judge had simply observed her behavior
and concluded that she had voluntarily impaired herself to the point that the hearing
could not continue, we would undoubtedly affirm the direct contempt citation and
penalty. The unusual aspect of this case is that the trial judge, based on no
recognized authority, sua sponte ordered a drug test to be immediately administered,
and then used the results of this drug test rather than Appellant's conduct in court as
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the basis to convict her of direct contempt. We must further note that no such test
results appear of record. Appellant argued that her mannerisms in court followed her
normal behavior pattern, but the judge did not believe her. The judge stated that she
would “rely upon the test of this Court” and “we have tested positive here so we are
going to have consequences for that now.” (Tr., pp. 4, 8). Despite the trial judge's
protestations that Appellant could not participate in the hearing due to her impaired
state, the hearing continued for a considerable length of time after the judge cited
and penalized her for contempt. Thus, the record affirmatively demonstrates that the
results of the drug test were the primary, if not the exclusive, basis for the contempt
conviction.
{¶13} Had Appellee been able to cite to some statutory or procedural
justification for the drug test, or if it had been a condition for granting bail or driving
privileges, or had the drug test been taken voluntarily instead of being ordered by the
court, we might still be inclined to affirm the trial court's actions. Under the facts of
this particular case, however, we find no evidentiary or legal support for this contempt
citation.
{¶14} Appellant is correct that the Fourth Amendment prohibits unreasonable
searches and seizures, and administering a drug test often raises a variety of Fourth
Amendment concerns. See, e.g., Skinner v. Ry. Labor Executives' Assn., 489 U.S.
602, 617, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (the collection and testing of urine
constitutes a search and seizure under the Fourth Amendment); Schmerber v.
California, 384 U.S. 757, 767, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (withdrawing
blood from a suspect to determine the suspect's blood-alcohol content constitutes a
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search within the meaning of the Fourth Amendment). A lengthy Fourth Amendment
analysis is unnecessary to our conclusion, though, that direct contempt based on the
results of drug testing must at least be supported by the record. This is not the type
of case in which we presume the regularity of the proceedings, because it is apparent
from the record and from oral argument that these particular proceedings were highly
irregular. Since there are no test results in the record, and because Appellee could
cite to no reasonable explanation supporting the court's right to order an immediate
drug test, the trial court erred in exclusively relying on the results of such a test as the
factual basis for direct contempt. Appellant's first and third assignments of error have
merit, albeit for reasons different than those advanced by Appellant.
ASSIGNMENTS OF ERROR NOS. 2 AND 4
THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A
THIRTY (30) DAYS JAIL SENTENCE FOR A FIRST FINDING OF
CONTEMPT.
DEFENDANT/APPELLANT WAS DENIED A FAIR TRIAL DUE TO THE
CUMULATIVE EFFECT OF THE ERRORS AS SET FORTH HEREIN.
{¶15} Appellant argues that the court should not have imposed a 30-day jail
term for a first instance of contempt, and that there was cumulative error. Because
we have reversed and dismissed the contempt citation, any questions raised by the
penalty imposed are now moot. There is no need to determine whether there was
any additional cumulative error. Accordingly, these assignments of error are moot.
Conclusion
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{¶16} Appellant was convicted and punished for direct criminal contempt after
she appeared in court in an impaired condition, but was then ordered to immediately
undergo a drug test sua sponte, which she apparently failed. The results of the drug
test are not in the record, and any legal justification for ordering an immediate drug
test as part of direct contempt proceedings was not provided by Appellee. The
record indicates that the contempt citation was based exclusively on the results of
this drug test, and again, these results cannot be confirmed by the record. Therefore,
we conclude that the record does not support the contempt conviction. Appellant's
first and third assignments of error are sustained, and her second and fourth
assignments of error are dismissed as moot. The judgment of the trial court is
reversed and the contempt citation is dismissed.
Donofrio, J., concurs.
Vukovich, J., concurs.