State v. Geary

[Cite as State v. Geary, 2016-Ohio-7001.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-160195
TRIAL NO. 14CRB-34322B
Plaintiff-Appellee, :
vs. : O P I N I O N.
BRANDON GEARY, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed in Part, Sentence Reversed in Part, and
Cause Remanded
Date of Judgment Entry on Appeal: September 28, 2016
Paula Boggs Muething, City Solicitor, Natalia Harris, City Prosecutor, and
Christopher Liu, Assistant City Prosecutor, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Demetra Stanatakos,
Assistant Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
F ISCHER , Presiding Judge.
{¶1} Defendant-appellant Brandon Geary was charged by complaint with
one count of disorderly conduct in violation of R.C. 2917.11(A)(4) and one count of
inducing panic in violation of R.C. 2917.31(A)(3) in connection his participation in a
protest on Interstate 75. Geary’s case proceeded to a jury trial where the state
presented testimony from three police officers generally describing Geary’s
involvement in an 80-100 person protest that had caused police to completely shut
down the interstate for 15-30 minutes to remove the protestors. Geary and two other
protestors testified for the defense. The jury acquitted Geary of disorderly conduct,
but convicted him of inducing panic. The trial court sentenced Geary to three days in
jail, credited him with time served, and imposed $858 in court costs. Geary filed a
Crim.R. 29(C) motion for an acquittal and/or a Crim.R. 33(A)(4) motion for a new
trial, which the trial court denied.
{¶2} Geary now appeals. He challenges the sufficiency and weight of the
evidence adduced at his jury trial to support his inducing-panic conviction, the trial
court’s jury instructions, and the trial court’s imposition of court costs. Because the
trial court imposed court costs of $858 in the judgment entry without announcing
the imposition of court costs at the sentencing hearing, we reverse the trial court’s
judgment with respect to court costs and remand the matter to the trial court for the
limited purpose of allowing Geary to move the trial court for a waiver of the payment
of court costs. We otherwise affirm the trial court’s judgment.
Jury Instructions
{¶3} We begin our analysis by addressing Geary’s third assignment of error.
In his third assignment of error, Geary argues the trial court erred in instructing the jury
2
OHIO FIRST DISTRICT COURT OF APPEALS
on the law relating to inducing panic and the First Amendment, which formed the basis
of Geary’s defense.
Inducing-Panic Instruction
{¶4} The record reflects that Geary was charged by complaint with
inducing panic under R.C. 2917.31(A)(3), which provides that “[n]o person shall * * *
cause serious public inconvenience by * * * committing any offense with reckless
disregard of the likelihood that its commission will cause serious public
inconvenience or alarm.”
{¶5} Thus, “committing any offense” is an essential element of inducing
panic that must be proven beyond a reasonable doubt. See In re P.T., 12th Dist.
Clinton No. CA2013-02-006, 2013-Ohio-3881, ¶ 26; State v. Weber, 5th Dist. Stark
No. 2007 CA 00334, 2009-Ohio-1344, ¶ 29.
{¶6} Here, the record reflects that the complaint specified a violation of
R.C. 2917.31(A)(3), but it did not specifically identify a predicate offense by statute
number. Rather it provided:
Inducing panic: R.C. 2917.31(A)(3):
P. Stoup, 177, being first duly cautioned and sworn, deposes and
says that Brandon Pierce Geary, on or about the 25th day of
November 2014, in Hamilton County, State of Ohio, did cause
serious public inconvenience or alarm, to-wit walking on I-75
preventing flow of traffic, by committing an offense, with reckless
disregard of the likelihood that its commission will cause serious
public inconvenience or alarm, contrary to and in violation of
Section 2917.31 of the Revised Code of Ohio, a misdemeanor of the
first degree.
3
OHIO FIRST DISTRICT COURT OF APPEALS
The complainant states that this complaint is based on arrested
walked [sic] onto roadway impeding the normal flow of traffic and
refused [sic] to exit roadway when ordered to do so by police.
{¶7} Geary sought a bill of particulars, but the city did not respond. Geary,
however, did not move to dismiss the complaint. Rather, he proceeded to trial on the
theory that the complaint had charged persistent disorderly conduct as the predicate
offense for the inducing-panic charge. In opening statement, the state argued that
the predicate offense for inducing panic was jaywalking.
{¶8} The state and Geary disagreed throughout the trial as to the predicate
offense for inducing panic. During a discussion of the proposed jury instructions, the
parties continued to disagree as to how the jury should be charged. Defense counsel
asserted that because persistent disorderly conduct and inducing panic were the
charged offenses, and the complaint for inducing panic alleged facts consistent with
persistent disorderly conduct, the jury should be instructed on persistent disorderly
conduct as the predicate offense. The city argued that the complaint charged a
jaywalking violation, and pointed to the language within the text of the complaint
that supported this assertion. The trial court gave defense counsel the option to use
either the exact verbiage of the complaint or the more precise language of R.C.
4511.50(B), but Geary’s counsel insisted that disorderly conduct serve as the
predicate offense. The trial court ultimately charged the jury based on the language
in the complaint.
{¶9} The trial court instructed the jury:
The defendant is charged with inducing panic. Before you can find
the defendant guilty, you must find beyond a reasonable doubt that
on or about the 25th day of November 2014, and in the City of
4
OHIO FIRST DISTRICT COURT OF APPEALS
Cincinnati, Hamilton County, Ohio, the defendant caused serious
public inconvenience by walking on I-75 and preventing the flow of
traffic with reckless disregard of the likelihood that its commission
would cause serious public inconvenience.
{¶10} “Due process requires that the state establish beyond a reasonable
doubt every fact necessary to constitute the crime charged.” State v. Lynn, 129 Ohio
St.3d 146, 2011-Ohio-2722, 950 N.E.2d 931, ¶ 15. “As a general rule, a defendant is
entitled to have the jury instructed on all the elements that must be proved to
establish the crime with which he is charged * * *.” State v. Adams, 62 Ohio St.2d
151, 153, 404 N.E.2d 144 (1980). A trial court’s failure to include all the elements of
an offense in a charge to the jury is error. See Adams; see also R.C. 2945.11.
{¶11} If the defendant has preserved the error in the trial court, the
appellate court reviews the error under the harmless-error standard under Crim.R.
52(A). State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 15; see
State v. Neder, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (holding that the
omission of an element of an offense from a jury instruction did not fall within the
limited category of constitutional errors that defy analysis by harmless-error
standards). Crim.R. 52(A) defines harmless error and states that “any error, defect,
irregularity or variance which does not affect substantial rights shall be disregarded.”
Under the harmless-error standard, the government must show that the error did
not affect the substantial rights of the defendant. If the government does not make
this showing, then the appellate court has no discretion to disregard the error, but
must reverse the conviction. Perry at ¶ 15.
{¶12} The jury instruction on inducing panic did not identify a specific
predicate offense by statute number or list the elements of that offense. The question
5
OHIO FIRST DISTRICT COURT OF APPEALS
is whether this is harmless error. Geary argues that the insertion of the language
from the complaint, “walking on I-75 and preventing the flow of traffic,” was
prejudicial because that same conduct described elements of persistent disorderly
conduct, which easily confused and misled the jury because they had been told the
predicate offense for inducing panic was jaywalking. Geary contends that without a
proper definition, the jury was left to conclude that “walking on I-75 and preventing
the flow of traffic” was an offense in and of itself, which is not a correct statement of
the law. Thus, the jury could not have found him guilty of inducing panic as
instructed by the court. As a result, he asks this court to reverse his conviction and
remand for a new trial.
{¶13} The city argues that while the jury instruction on inducing panic could
have more precisely defined the predicate offense, it adequately described an offense.
The city argues that “walking on I-75 and preventing the flow of traffic” satisfies the
“committing any offense” element because it adequately describes the offense of
“Pedestrian Walking in Roadway” in violation of R.C. 4511.50(B). R.C. 4511.50(B)
provides that “any pedestrian walking along and upon a highway shall walk only on a
shoulder, as far as practicable from the edge of the roadway.” The city further
asserts that the trial court gave Geary the option to use either the exact verbiage of
the complaint or the more precise language of R.C. 4511.50(B), but that Geary’s
counsel insisted that disorderly conduct serve as the predicate offense. The trial
court decided to insert the language in the complaint.
{¶14} We agree with the city that the failure to correctly instruct the jury on
the law was harmless error that did not affect Geary’s substantial rights. The city’s
theory of the case with respect to the inducing-panic charge, as revealed during
opening statement, was that Geary had committed the offense of jaywalking by
6
OHIO FIRST DISTRICT COURT OF APPEALS
walking on the interstate. The city argued that Geary’s presence on the interstate
caused it to be shut down for 15-30 minutes. The evidence demonstrated beyond a
reasonable doubt that Geary had walked on the interstate. A police officer testified
that he had told protestors numerous times that it was a violation of law to walk on
the interstate yet the protestors remained on the interstate. Another police officer
testified that he had personally seen Geary walking among protestors in a lane of
travel on the interstate after the commands to leave the interstate had been given.
Geary himself admitted that there was a shoulder along the interstate, but that he
had walked and then kneeled in the lane of travel. Thus, we cannot say that but for
the failure to give a more concise jury instruction the outcome of the trial would have
been different. Accordingly, we conclude the trial court’s failure to specifically
identify R.C. 4511.50(B) as the predicate offense in the jury instruction was harmless
error.
First Amendment Instruction
{¶15} Geary next contends that the trial court erred by including an excerpt
from Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed.2d 1049 (1941), as
part of the jury instruction on the First Amendment.
{¶16} The trial court gave the jury the following instruction on the First
Amendment:
The First Amendment protects free speech. The State cannot
prosecute someone for exercising his right to free speech. The law
applicable to this case is that protests of allegations of police
misconduct are protected speech and are protected by the First
Amendment and the defendant cannot be convicted of such
activity.
7
OHIO FIRST DISTRICT COURT OF APPEALS
However, where a restriction of the use of highways in that
relationship is designed to promote the public convenience and the
interest of all, it cannot be disregarded by the attempted exercise of
some civil right which in other circumstances would be entitled to
protection.
{¶17} Geary does not challenge the first paragraph of the jury instruction,
which he proposed and the trial court adopted. Rather, he challenges only the second
paragraph of the instruction, which the trial court adopted from the language in Cox,
over the objection of Geary’s counsel.
{¶18} During the trial, Geary’s counsel objected to this portion of the
instruction, arguing that the trial court should not include this language because Cox
had addressed a New Hampshire statute. In that case, the defendants, who had been
convicted of having a parade or procession on a public street without a special
license, challenged the validity and power of the licensing authority pursuant to the
statute under the First and Fourteenth Amendments. The United States Supreme
Court held that the statute was a reasonable regulation of “time, place, and manner
in relation to the other proper uses of the streets.” Cox, 312 U.S. at 576, 61 S.Ct. 762,
85 L.Ed.2d 1049. The trial court asked Geary’s counsel to propose alternative
language to the instruction, but Geary’s counsel refused to do so, claiming the first
paragraph should stand alone.
{¶19} Geary argues now, without citation to any authority, that such time,
place, and manner restrictions on expressive conduct are relevant only where the
constitutionality of a statute is questioned on First Amendment grounds. He
contends that because he did not challenge the constitutionality of any Ohio statute
8
OHIO FIRST DISTRICT COURT OF APPEALS
on First Amendment grounds, Cox is inapplicable and the trial court, therefore, erred
in providing the jury with this portion of the instruction. We disagree.
{¶20} Ohio courts, including this court, have uniformly recognized in
criminal cases that “the First Amendment has never conferred an absolute right to
engage in expressive conduct whenever, wherever, and in whatever manner a
speaker may choose.” See State v. Condon, 152 Ohio App.3d 629, 2003-Ohio-2335,
789 N.E.2d 696, ¶ 23 (1st Dist.), quoting Cincinnati v. Thompson, 96 Ohio App.3d 7,
16, 643 N.E.2d 1157 (1st Dist.1994); State v. Amireh, 4th Dist. Athens Nos. 15CA14,
15CA15 and 15CA16, 2016-Ohio-1446, ¶ 18-20. Rather, they have recognized that
when such conduct is imbued with communicative elements that would fall within
the First Amendment, the conduct is subject to time, place, and manner restrictions.
Condon at ¶ 23.
{¶21} For example, in Thompson, this court concluded that abortion
protestors had no right to trespass upon private property to express their views after
medical personnel had asked them to leave. Thompson at 16-18. Likewise, in City of
Cleveland v. Egeland, 26 Ohio App.3d 83, 86, 497 N.E.2d 1383 (8th Dist.1986), the
Eighth Appellate District concluded that a protestor’s conscientious belief in the
importance of protesting nuclear warfare did not provide him with a lawful purpose
to obstruct a roadway. In reaching its conclusion, the Eighth District expressly relied
on the United States Supreme Court’s opinion in Cox. Id.{¶22} Thus, contrary to Geary’s assertions, the second paragraph of the
instruction was not an improper statement of the law. Nor was the instruction
unnecessary based on the facts in this case. Geary’s counsel argued throughout the
trial that he had a right to exercise his First Amendment right to free speech. Had
the trial court just given the first part of the instruction, the jury could have
9
OHIO FIRST DISTRICT COURT OF APPEALS
concluded that Geary’s First Amendment rights rendered his conduct immune from
prosecution and that he was automatically entitled to a verdict of acquittal.
{¶23} Geary further argues that the instruction prejudiced and misled the
jury as evidenced by the following jury question: “Where did the highway decision to
the First Amendment come from? What was the basis?” But the record reflects that
Geary’s counsel invited such an inquiry when she asked the jury during closing
argument to question where the law had come from that would restrict Geary’s First
Amendment rights in relation to the use of the highways because the state had not
presented evidence of any such law in its case.
{¶24} Because the challenged jury instruction on the First Amendment was
a proper statement of the law, we cannot conclude the trial court erred in providing
this instruction to the jury. We, therefore, overrule the third assignment of error.
Sufficiency of the Evidence
{¶25} In his first assignment of error, Geary contends that the evidence was
insufficient to sustain his conviction for inducing panic. He argues that the city
failed to prove that (1) he had acted with reckless disregard that his actions would
cause a serious public inconvenience, (2) he had caused a serious public
inconvenience, or (3) had committed any offense.
{¶26} R.C. 2901.22(C) provides that a person acts recklessly when “with
heedless indifference to the consequences, he perversely disregards a known risk that
his conduct is likely to cause a certain result or is likely to be of a certain nature.”
{¶27} All three police officers testified that a group of 80-100 protestors had
walked on Interstate 75. Although two of the officers were at the back of the protest,
the third officer testified that he had warned the protestors by loudspeaker as they
approached the entrance ramp to the interstate not to enter the highway and that
10
OHIO FIRST DISTRICT COURT OF APPEALS
police cruisers were positioned at the bottom of the entrance ramp to block the
protestors from entering the interstate. Once the protestors had entered the
interstate, the officers shut down the interstate. Two officers had then utilized the
public address systems in their vehicles to make at least four to six, and up to a
dozen, announcements telling the protestors to leave the highway. When the
protestors did not leave the highway, it remained closed to the public for 15-30
minutes so the protestors could be removed from the interstate. Officer Ostermann
testified that he saw Geary on the interstate at the time of the second announcement.
{¶28} The jury could have found that Geary acted recklessly by walking past
the police who were blocking the entrance ramp to the interstate and then remaining
on the highway. To the extent that Geary argues his actions and testimony support a
different version of events, we address these arguments in the second assignment of
error as they focus more on the weight of the evidence than its sufficiency.
{¶29} Geary also argues that the city failed to prove that he caused a
“serious public inconvenience” because his conduct did not fall within the purpose of
the inducing-panic statute. See State v. Campbell, 195 Ohio App.3d 9, 2011-Ohio-
3458, 958 N.E.2d 622 ¶ 12 (1st Dist.) (holding that mere inconvenience to police
officers was not the type of conduct the inducing-panic statute was intended to
prohibit).
{¶30} Because the term “serious public inconvenience” is not defined in the
statute, Geary relies on the 1973 committee comment to H.B. 551, which amended
R.C. 2917.31. The comment provides that “the overall goal of the offense of inducing
panic was primarily to avoid the harm which may result from the panic.” It then
provides examples of false bomb threats, deceptively causing a meeting to be
cancelled due to a threat, and a free-for-all bar fight. Geary argues that because there
11
OHIO FIRST DISTRICT COURT OF APPEALS
was no evidence he made a false threat, deceptively caused the police to block traffic,
or engaged in violent behavior that caused people to flee from violence, as referenced
in the comments to the inducing-panic statute, the state failed to prove he caused a
serious public inconvenience.
{¶31} We disagree. The comments are merely illustrative and not
exhaustive of conduct that may cause “serious public inconvenience.” Here, the state
produced sufficient evidence that Geary caused a serious public inconvenience when
he and 80 to 100 protestors marched on Interstate 75 during the rush hour in the
middle of downtown Cincinnati and sat down in the lane of travel. Geary and the
other protestors’ presence on the highway caused the police to shut down the
interstate for 15 to 30 minutes until he and the other protestors could be removed,
thereby inconveniencing all the motorists on northbound Interstate 75. See, e.g.,
State v. Andrew, 1st Dist. Hamilton No. C-110141, 2012-Ohio-1731, ¶ 6 (defendant’s
actions in firing a gun at pursuing officers, causing four residential streets to be
closed and a store to be evacuated, was sufficient evidence that defendant had acted
with reckless disregard and had caused serious public inconvenience and alarm).
Thus, the state presented sufficient evidence to show that Geary had caused a serious
public inconvenience.
{¶32} Geary next asserts that the state failed to prove that he had
committed the predicate offense for inducing panic. Geary argues that if the
predicate offense for inducing panic was R.C. 4511.50(B), “pedestrian in the
roadway,” the statute could not serve as the predicate offense because it is a statute
of general conduct. He cites State v. Clancy, 2d Dist. Montgomery No. 18844, 2002-
Ohio-1881, as support for his position, but that case did not address a similar matter.
Moreover, Geary’s argument that R.C. 4511.50(B) could not serve as the predicate
12
OHIO FIRST DISTRICT COURT OF APPEALS
offense for inducing panic would seem to contradict the plain language of R.C.
2917.31(A)(3), which provides that “any” offense may serve as the predicate offense.
{¶33} Finally, we address Geary’s argument that the state could not proceed
with R.C. 4511.50(B) as the predicate offense for the inducing-panic charge, without
amending the complaint in violation of his due-process rights. Crim.R. 7(D)
addresses amendments to criminal complaints. It provides that “[t]he court may at
any time before or after a trial amend the indictment, information, complaint, or bill
of particulars, in respect to any defect, imperfection, or omission in form or
substance, or of any variance with the evidence, provided no change is made in the
name or identity of the crime charged.” The Ohio Supreme Court has held that “[a]n
indictment, which does not contain all the essential elements of an offense, may be
amended to include the omitted element, if the name or the identity of the crime is
not changed, and the accused has not been misled or prejudiced by the omission of
such element from the indictment.” State v. O’Brien, 30 Ohio St.3d 122, 508 N.E.2d
144 (1987), paragraph two of the syllabus.
{¶34} The purpose of an indictment is to give notice to an accused of “that
which he may expect to meet and be required to answer; so that the court and jury
may know what they are to try, and the court may determine without unreasonable
difficulty what evidence is admissible.” Horton v. State, 85 Ohio St. 13, 19, 96 N.E.
797 (1911); see State v. Sims, 1st Dist. Hamilton Nos. C-150252 and C-150253, 2015-
Ohio-4996, ¶ 15 (“the purpose of a charging instrument, such as a complaint is to
give the defendant adequate notice of the charge”).
{¶35} In Sims, the defendant argued that the trial court erred in convicting
him of first-degree-misdemeanor criminal damaging where the affidavit, the
complaint, and the judgment of conviction did not contain the degree of the offense
13
OHIO FIRST DISTRICT COURT OF APPEALS
or the additional element elevating the offense. We held that even though the
complaint did not contain the degree of the offense and the state had failed to track
the language of the statute with regard to the element of creation of a risk of physical
harm to a person, these omissions did not rise to the level of plain error because the
complaint contained the facts necessary to put Sims on notice that the aggravating
element applied. Id. at ¶ 17.
{¶36} Here, the failure to list the predicate offense in the complaint does not
rise to the level of plain error. Geary was on notice that the behavior at issue was his
walking on Interstate 75 and failing to leave when the police asked him to do so.
During opening argument, the city prosecutor told the jury that jaywalking was the
predicate offense for the inducing-panic charge. Geary’s defense in this case was not
that he did not walk on Interstate 75, it was that he did not hear the warnings that he
should not enter the highway or leave it. As a result, we find Geary’s argument
meritless. We, therefore, overrule his first assignment of error.
Manifest Weight of the Evidence
{¶37} In his second assignment of error, Geary challenges the weight of the
evidence adduced to support his conviction.
{¶38} To reverse a conviction on the manifest weight of the evidence, this
court must review the entire record, weigh the evidence, and all reasonable
inferences, consider the credibility of the witnesses, and conclude that, in resolving
the conflicts in the evidence, the trier of fact clearly lost its way and created a
manifest miscarriage of justice in finding the defendant guilty. State v. Thompkins,
78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).
{¶39} Geary argues the jury lost its way in finding him guilty of inducing
panic for many of the same reasons enumerated under his sufficiency challenge. He
14
OHIO FIRST DISTRICT COURT OF APPEALS
first argues that the jury lost its way in finding that he had acted recklessly and that
he had caused a serious public inconvenience given the defense testimony precluding
such findings. But any discrepancies in the testimony between the state’s witnesses
and the defense witnesses regarding the timing of the warnings for the protestors to
leave the interstate and the closing of the interstate were matters of credibility for the
jury to decide. The jury was entitled to accord more weight to the officers’ testimony
than to the testimony provided by Geary and the two other protestors. See State v.
Railey, 1st Dist. Hamilton No. C-130307, 2012-Ohio-4233, ¶ 14.
{¶40} Geary also argues the jury lost its way in convicting him of inducing
panic because there was no evidence that serious public inconvenience resulted from
a false alarm, threat, or deception that caused people to flee from violence. But, as
discussed under our sufficiency analysis, the presence of a false alarm, threat, or
deception is unnecessary to support a conviction for inducing panic under R.C.
2917.31(A)(3). Thus, the jury could have found Geary and the other protestors’
presence on the highway caused the police to shut down the interstate for 15 to 30
minutes until he and the other protestors could be removed, thereby
inconveniencing all the motorists on northbound Interstate 75.
{¶41} Finally, Geary argues that his acquittal of disorderly conduct renders
his conviction for inducing panic against the sufficiency and the manifest weight of
the evidence. Geary argues that because disorderly conduct served as the predicate
offense for the inducing-panic conviction, it makes no sense that he could be
acquitted of the predicate offense, but convicted of the compound offense. But
because the predicate offense for inducing panic was jaywalking, there is no
inconsistency in the verdicts. We, therefore, find Geary’s argument meritless, and we
overrule his second assignment of error.
15
OHIO FIRST DISTRICT COURT OF APPEALS
Court Costs
{¶42} In his fourth and final assignment of error, Geary argues the trial
court violated Crim.R. 43(A) by imposing court costs of $858 in the judgment entry
when it failed to address the imposition of court costs at the sentencing hearing.
{¶43} As a preliminary matter, we address the city’s argument that Geary is
precluded from challenging the imposition of court costs because he did not identify
the trial court’s judgment of conviction in the notice of appeal. Instead the city
argues that Geary only identified the trial court’s entry denying his posttrial motions.
App.R. 4(B)(3) tolls the time for filing a notice of appeal until the trial court has ruled
on all posttrial motions, including a motion for a new trial. See State v. Smith, 1st
Dist. Hamilton Nos. C-080712 and C-090505, 2009-Ohio-6932, ¶ 12. Geary’s appeal
from the final entry in his case, the trial court’s entry denying his posttrial motions,
would not preclude him from appealing the earlier judgment of conviction. With
respect to the content of the notice of appeal, the Ohio Supreme Court has held that
an error or defect in the notice of appeal, such as failing to specify the order from
which the appeal is taken, does not divest the court of appeals of jurisdiction. See
Maritime Mfrs., Inc. v. Hi-Skipper Marina, 70 Ohio St.2d 257, 436 N.E.2d 1034(1982); Roberts v. Skaggs, 176 Ohio App.3d 251, 2008-Ohio-1954, 891 N.E.2d 827, ¶
6-9 (1st Dist.); see also Jenkins v. Hill, 4th Dist. Meigs No. 14CA4, 2015-Ohio-118.
{¶44} We thus turn to the merits of Geary’s argument. The Ohio Supreme
Court has held that a trial court’s failure to address court costs and fees at the
sentencing hearing and to then impose them in the journal entry is reversible error
that requires a remand for the limited purpose of remedying the error. State v.
16
OHIO FIRST DISTRICT COURT OF APPEALS
Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, ¶ 12, 13 and 22; State v.
Throckmorton, 126 Ohio St.3d 55, 2010-Ohio-2693, 930 N.E.2d 311; see State v.
Carpenter, 1st Dist. Hamilton No. C-140423, 2015-Ohio-1615, ¶ 40-41 (following
Joseph). In Joseph, the state had argued that any error was harmless, but the
Supreme Court disagreed. It held that Joseph was harmed because he was “denied
the opportunity to claim indigency and to seek a waiver of the payment of court costs
before the trial court” and that “he should have that chance.” Joseph at ¶ 22.
{¶45} The record reflects that the trial court did not discuss the imposition
of court costs at the sentencing hearing. Whether the trial court or the clerk
ministerially imposed the court costs following the sentencing hearing, the reality is
that Geary had no opportunity to claim indigency and to seek a waiver of the
payment of those costs where he was sentenced immediately following the trial and
court costs were never discussed during the sentencing hearing.
{¶46} The city argues that any error by the trial court in failing to address
Geary regarding court costs is harmless because the record reflects that Geary is not
indigent and therefore, he is ineligible for a waiver of costs. The city points to
defense counsel’s statement during the sentencing hearing that Geary was currently
working at Urban Outfitters, and Geary’s testimony during the trial that he was
working as a manager at Urban Outfitters. But Geary should have the opportunity in
the first instance to present his claim for waiver of court costs to the trial court before
it imposes those costs. See Joseph at ¶ 22; Carpenter at ¶ 41. As a result, we sustain
Geary’s fourth assignment of error. We, therefore, reverse the portion of Geary’s
sentence imposing court costs and remand this cause to the trial court for the limited
purpose of allowing Geary to move the trial court in the first instance for a waiver of
the payment of court costs. We affirm the trial court’s judgment in all other respects.
17
OHIO FIRST DISTRICT COURT OF APPEALS
Judgment affirmed in part, sentence reversed in part, and cause remanded.
HENDON and CUNNINGHAM, JJ., concur.
Please note:
The court has recorded its own entry this date.
18