State v. Tinley

[Cite as State v. Tinley, 2018-Ohio-2239.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 17CA0062-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
MARI BETH TINLEY WADSWORTH MUNICIPAL COURT
COUNTY OF MEDINA, OHIO
Appellant CASE No. 17CRB0254
DECISION AND JOURNAL ENTRY
Dated: June 11, 2018
CALLAHAN, Judge.
{¶1} Defendant-Appellant, Mari Beth Tinley, appeals from her conviction in the
Wadsworth Municipal Court. This Court affirms.
I.
{¶2} As a result of an incident that occurred on March 25, 2017, Ms. Tinley was
charged with one count of domestic violence. Her trial date was postponed on two occasions and
ultimately set for July 10, 2017. Though she attempted to demand a jury trial a few days before
her scheduled trial, the court denied her request as untimely. An acting judge then presided over
her trial due to the unavailability of the original judge.
{¶3} The acting judge found Ms. Tinley guilty and scheduled the matter for a
presentence interview. Ms. Tinley then filed a motion for new trial, and the original trial judge
denied her motion. The court sentenced Ms. Tinley to suspended jail time, one year of
probation, and a fine.
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{¶4} Ms. Tinley now appeals from her conviction and raises seven assignments of error
for review. For ease of analysis, this Court consolidates several of her assignments of error.
II.
ASSIGNMENT OF ERROR NO. 1
THE COURT ERRED BY NOT EITHER CONTINUING THE TRIAL OR
PRECLUDING THE STATE’S WITNESSES FROM TESTIFYING DUE TO
THEIR FAILURE TO COMPLY WITH CRIMINAL RULE 16.
ASSIGNMENT OF ERROR NO. 2
THE COURT ERRED BY ALLOWING THE OFFICER TO TESTIFY TO
HEARSAY.
ASSIGNMENT OF ERROR NO. 3
THE PHOTOS WERE NOT PROPERLY DISCLOSED DURING DISCOVERY
AND SHOULD NOT HAVE BEEN ADMITTED.
ASSIGNMENT OF ERROR NO. 4
THE CONVICTION FOR DOMESTIC VIOLENCE WAS NOT SUPPORTED
BY SUFFICIENT EVIDENCE AND WAS AGAINST THE WEIGHT OF THE
EVIDENCE.
{¶5} In the foregoing assignments of error, Ms. Tinley argues that the court committed
reversible error during the course of the trial and that her conviction is based on insufficient
evidence and is against the manifest weight of the evidence. Because the record does not contain
a transcript of the proceedings, this Court has no choice but to presume regularity and reject each
of her assignments of error.
{¶6} App.R. 9(B)(1) provides that “it is the obligation of the appellant to ensure that
the proceedings the appellant considers necessary for inclusion in the record, however those
proceedings were recorded, are transcribed in a form that meets the specifications of App.R.
9(B)(6).” (Emphasis added.) See also Loc.R. 5(A). The transcription of any necessary
proceedings is, therefore, required, and an appellant may not rely solely on an audio-recording
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for purposes of his or her appeal. See App.R. 9(B)(1) and App.R. 9(B)(6) (outlining various
formatting requirements for bound volumes of transcripts). But see App.R. 9(B)(1) (providing
for an exception in expedited abortion-related appeals from juvenile court). “‘When an appellant
fails to provide a complete and proper transcript, a reviewing court will presume the regularity of
the proceedings in the trial court and affirm.’” State v. Lothes, 9th Dist. Medina Nos.
11CA0015-M, 11CA0016-M, 11CA0017-M, 2012-Ohio-1388, ¶ 7, quoting State v. Campbell,
9th Dist. Medina No. 10CA0120-M, 2011-Ohio-5433, ¶ 5.
{¶7} The record in this matter does not contain any transcripts. Following Ms.
Tinley’s trial, the court recorder and secretary of the Wadsworth Municipal Court certified that
the proceedings had been electronically recorded. Ms. Tinley did not ask the court to appoint a
court reporter, but instead filed a praecipe for transcripts directly with the court. Subsequently,
the court recorder and secretary filed an affidavit in which she averred that she was the official
court reporter for the court. She further averred that the Wadsworth Municipal Court had “filed
a complete transcript of all computer entries and proceedings” with this Court of Appeals and
that “the same was a true and accurate record of the proceedings * * *.” An audio-recording of
the trial was included along with her affidavit. Yet, the audio-recording was never transcribed,
and Ms. Tinley took no further action to secure a transcript.
{¶8} Upon review, this Court cannot resolve Ms. Tinley’s first, second, third, or fourth
assignments of error on their merits in the absence of a trial transcript. The audio-recording
contained in the record does not comport with App.R. 9 and is not a substitute for a proper
transcript. See Lothes at ¶ 6-7; Campbell at ¶ 6-7. Because Ms. Tinley failed to ensure that these
proceedings were transcribed in accordance with App.R. 9, this Court has no choice but to
“‘presume the regularity of the proceedings in the trial court and affirm.’” Lothes at ¶ 7, quoting
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Campbell at ¶ 5. Consequently, her first, second, third, and fourth assignments of error are
overruled.
ASSIGNMENT OF ERROR NO. 5
THE DEFENDANT’S RIGHT TO A SPEEDY TRIAL WAS VIOLATED.
{¶9} In her fifth assignment of error, Ms. Tinley argues that her statutory speedy trial
rights were violated. This Court rejects her argument.
{¶10} To preserve a statutory speedy trial argument for appeal, a defendant must invoke
her speedy trial rights “at or prior to the commencement of trial.” R.C. 2945.73(B). Accord
State v. Griffin, 9th Dist. Medina No. 2440-M, 1995 Ohio App. LEXIS 5613, *3 (Dec. 20, 1995).
A defendant who fails to assert her speedy trial rights in a timely manner forfeits those rights and
is limited to a claim of plain error on appeal. See State v. Carter, 9th Dist. Summit No. 27717,
2017-Ohio-8847, ¶ 20; Griffin at *3. Even so, “[t]his Court has repeatedly noted that it will not
sua sponte fashion an unraised plain error argument and then address it.” State v. Jacobs, 9th
Dist. Summit No. 27545, 2015-Ohio-4353, ¶ 33.
{¶11} The record reflects that, prior to trial, Ms. Tinley never filed a motion to dismiss
or discharge this matter based on a violation of her speedy trial rights. Though she claims that
she raised a speedy trial argument at trial, this Court cannot confirm that she did so due to the
absence of a trial transcript. See State v. Suttles, 9th Dist. Summit No. 28748, 2018-Ohio-1607,
¶ 5 (presuming regularity where appellant failed to provide transcript). Absent any indication in
the record that Ms. Tinley invoked her speedy trial rights “at or prior to the commencement of
trial,” R.C. 2945.73(B), this Court must conclude that she forfeited those rights and is now
limited to a claim of plain error. See Carter at ¶ 20. Ms. Tinley, however, has not argued plain
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error on appeal, and this Court will not construct an argument on her behalf. See Jacobs at ¶ 33.
Accordingly, her fifth assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 6
IT WAS AN ABUSE OF THE TRIAL COURT’S DISCRETION TO NOT
CONSIDER THE DEFENDANT’S MOTION FOR A NEW TRIAL.
{¶12} In her sixth assignment of error, Ms. Tinley argues that the trial court abused its
discretion when it failed to consider several aspects of her motion for a new trial. This Court
disagrees.
{¶13} Crim.R. 33(A) allows a defendant to move for a new trial when her substantial
rights have been materially affected. A trial court’s ultimate decision to grant or deny a motion
for new trial is one this Court reviews for an abuse of discretion. State v. McQuistan, 9th Dist.
Medina No. 17CA0007-M, 2018-Ohio-539, ¶ 43. An abuse of discretion indicates that the trial
court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5
Ohio St.3d 217, 219 (1983).
{¶14} Due to the unavailability of the original trial judge in this matter, an acting judge
presided over Ms. Tinley’s trial. The original trial judge then received Ms. Tinley’s motion for a
new trial. In ruling on the motion, the original trial judge indicated that he was unwilling to
“second guess” the acting judge’s evidentiary rulings or decision to deny a continuance of the
trial date. According to Ms. Tinley, the original trial judge’s refusal to “second guess” those
rulings amounted to “an absolute refusal to consider the merits of [her] motion * * *.” She
argues that it was unreasonable for the original trial judge to deny her motion based on “some
sense of judicial loyalty to [the] acting judge * * *.”
{¶15} Ms. Tinley has made no attempt to explain how she was prejudiced by the court’s
handling of her motion. See Crim.R. 52(A). She has not explained why the underlying
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arguments she advanced in her motion were meritorious. See App.R. 16(A)(7). Moreover,
because she has not provided this Court with a transcript, she also has not ensured that this Court
possesses an adequate record for review. See State v. Brooks, 9th Dist. Lorain No. 16CA010958,
2017-Ohio-5620, ¶ 6, quoting State v. Keene, 9th Dist. Lorain No. 06CA008880, 2006-Ohio-
6676, ¶ 22 (“‘[T]he burden of ensuring that the record on appeal is complete is placed on
appellant.”’). For the foregoing reasons, this Court rejects her argument that the trial court erred
in its ruling on her motion for a new trial. Ms. Tinley’s sixth assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 7
THE DEFENDANT’S RIGHT TO DUE PROCESS BY THE CASE BEING
HEARD BY AN ACTING JUDGE INSTEAD OF A JURY. (Sic.)
{¶16} In her seventh assignment of error, Ms. Tinley argues that her due process rights
were violated because, after an acting judge was appointed to preside over her trial, she was
denied the opportunity to demand a jury. For the following reasons, this Court rejects her
argument.
{¶17} Pursuant to R.C. 1901.121(A)(2)(a), a municipal judge may appoint an attorney to
act in his or her stead if the municipal judge is the only one serving the municipality and he or
she must be temporarily absent. Ms. Tinley does not dispute this statutory authority or otherwise
argue that the original trial judge lacked the authority to appoint an acting judge. Instead, she
argues that the timing of the appointment violated her due process rights because it occurred too
close to her trial, such that she did not have the opportunity to make a timely demand for a jury
trial.1
1
Although Ms. Tinley repeatedly references a 14-day window as the timeframe within which she
had to request a jury, the 14-day timeframe only applies in civil cases. See Civ.R. 38(B). In
petty offense cases, a defendant must file a jury demand not less than ten days before trial. See
Crim.R. 23(A).
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{¶18} The record is devoid of any journal entry or docket notation evidencing the formal
appointment of an acting judge in this matter. Consequently, it is not clear from the record when
the original trial judge actually appointed the acting judge who presided over Ms. Tinley’s trial.
The record reflects that Ms. Tinley filed a jury demand five days before her scheduled trial date,
and, the following day, a visiting judge (i.e., not the original judge or the acting judge) signed an
entry denying her demand as untimely. Four days later, the acting judge issued a judgment
entry, finding Ms. Tinley guilty and referring the matter for a presentence interview. No
motions, entries, or notations were filed or entered in the four days between the visiting judge’s
denial of Ms. Tinley’s written jury demand and the acting judge’s judgment entry.
{¶19} According to Ms. Tinley, she did not receive any advance notice that her trial
would be heard by an acting judge. She alleges that she “specifically renewed [her] jury demand
at the start of the trial” to preserve this issue for review. As repeatedly noted, however, the
record does not contain a transcript of the proceedings, so this Court cannot determine whether
Ms. Tinley raised this issue at the start of trial. Although she filed a jury demand five days
before her scheduled trial, she never indicated that she did so due to the appointment of an acting
judge. She simply filed a demand for a jury, and the visiting judge denied it as untimely. Based
on Ms. Tinley’s representation that she did not receive any advance notice of the appointment of
the acting judge, it does not appear that her written jury demand bore any relation to that
appointment.
{¶20} Upon review, Ms. Tinley has not demonstrated that she preserved this issue for
appeal by timely raising it in the lower court. See State v. Fitzgerald, 9th Dist. Summit No.
23072, 2007-Ohio-701, ¶ 8 (“[A] forfeiture occurs where a party fails to assert a right or make an
objection before the trial court in a timely fashion.”). Without a transcript, this Court cannot
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confirm that she renewed her jury demand or otherwise raised a due process argument on that
basis at trial. Further, even assuming the lack of a transcript would not foreclose her from
prevailing on a claim of plain error, she has not argued plain error on appeal. See Jacobs, 2015-
Ohio-4353, at ¶ 33. Accordingly, this Court has no choice but to “‘presume the regularity of the
proceedings in the trial court and affirm.’” Lothes, 2012-Ohio-1388, at ¶ 7, quoting Campbell,
2011-Ohio-5433, at ¶ 5. Ms. Tinley’s seventh assignment of error is overruled.
III.
{¶21} Ms. Tinley’s assignments of error are overruled. The judgment of the Wadsworth
Municipal Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Wadsworth
Municipal Court, County of Medina, State of Ohio, to carry this judgment into execution. A
certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
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Costs taxed to Appellant.
LYNNE S. CALLAHAN
FOR THE COURT
SCHAFER, P. J.
CARR, J.
CONCUR.
APPEARANCES:
SEAN C. BUCHANAN, Attorney at Law, for Appellant.
THOMAS J. MORRIS, Assistant Director of Law, for Appellee.