State v. Odey

[Cite as State v. Odey, 2014-Ohio-1352.]
STATE OF OHIO, COLUMBIANA COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
) CASE NO. 13 CO 23PLAINTIFF-APPELLEE, )
)
- VS - ) OPINION
)
LISA ODEY, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Municipal Court,
Case No. 12 CRB 1166.
JUDGMENT: Affirmed. Counsel's Motion to
Withdraw Granted.
APPEARANCES:
For Plaintiff-Appellee: Attorney Robert L. Herron
Prosecuting Attorney
Attorney Don Humphrey, Jr.
Asst. Prosecuting Attorney
38832 Saltwell Road
Lisbon, OH 44432
For Defendant-Appellant: Attorney Richard Hura
9 East Park Avenue
Columbiana, OH 44408
JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Dated: March 24, 2014
[Cite as State v. Odey, 2014-Ohio-1352.]
DeGenaro, P.J.
{¶1} Defendant-Appellant, Lisa L Odey, appeals the April 3, 2013 judgment of
the Columbiana County Municipal Court convicting her of one count of disorderly conduct
and sentencing her accordingly. Appointed appellate counsel filed a no-merit brief
pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.E.2d 493 (1967), and
State v. Toney, 23 Ohio App.2d 203, 262 N.E.2d 419 (7th Dist.1970), and requested
leave to withdraw from the case. Odey filed a document captioned as a pro-se brief,
which consisted of counsel's brief with Odey's handwritten notes in the margins of the
brief and appended to it. A thorough review of the case file reveals that there are no
appealable issues, and that the appeal is in fact frivolous. Accordingly, the judgment of
the trial court is affirmed and counsel's motion to withdraw granted.
Facts and Procedural History
{¶2} In the very early morning hours of December 31, 2012, Odey was arrested
and charged by complaint with one count of disorderly conduct while intoxicated (R.C.
2917.11(B)(1)), a fourth-degree misdemeanor. Later that day she was arraigned,
appointed counsel, executed a speedy trial, waiver and was released on a personal
recognizance bond.
{¶3} The case proceeded to a bench trial on April 3, 2013. Salem Police
Patrolman Brandon Smith testified that on December 30, 2012, he was working the night
shift. During the very early morning hours of December 31, 2012, a call came in
complaining about a domestic disturbance at an apartment in Salem, Ohio. He
responded to the call along with Salem Police Officer Steve LaRosa. Officer Steve
LaRosa was on worker's compensation leave at the time of trial and unavailable to testify.
{¶4} Ptl. Smith testified that upon entering the apartment building at
approximately 4:14 a.m., he heard loud voices and immediately went to Apartment 33 on
the second floor. As he approached the door he heard a male loudly calling a female "a
dumb b*tch" and telling her to "shut the f*ck up." Then he heard the female tell the male
to "shut the f*ck up." There were other apartments in close proximity to Apartment 33
and Ptl. Smith said he could plainly hear the disturbance in the common hallway. The
-2-
male, Clayton Powell, opened the apartment door and was instructed to get the female,
Lisa Odey, and bring her to the door, which he did.
{¶5} While they were talking, Ptl. Smith noticed a strong odor of alcoholic
beverage. He, along with the other officer, explained the nature of the complaint to Odey
and Powell, ensured there was no physical violence taking place and had a 5-10 minute
discussion with them telling them to keep quiet and stay calm and that if they did so there
would be no further problems.
{¶6} After the two went back into the apartment, the officers remained in the
hallway to see if the disturbance would continue. As soon as the door shut, neighbors
from Apartment 35 and 34, Brenda Chriss and Jamie Webb, respectively, came into the
hallway to complain that they had been disturbed by Odey and Powell's behavior. Later
Ptl. Smith took a written statement from Chriss, which the trial court determined was
hearsay and was not admitted into evidence.
{¶7} While the officers were talking to the neighbors, they heard a loud
commotion from inside the apartment; both Odey and Powell were yelling at each other
again. The officers knocked on the door and both Powell and Odey answered. Ptl. Smith
said they gave Odey the option to leave or take a walk. Ptl. Smith offered to give Odey a
ride to her mother's house or to call her a taxi. At one point, Odey agreed to leave, went
inside to gather her belongings and then told the officers that she had changed her mind.
At that point, Ptl. Smith warned them to calm down and be quiet or they would be
arrested. The officers then left the apartment complex, clearing the call at 4:46 a.m. At
4:49 a.m., when they were a few blocks down the street, a call came in from Webb, the
neighbor, complaining of noise. The officers returned to the apartment building and
could hear Odey and Powell arguing again. While standing outside the door to Powell's
apartment, Ptl. Smith heard Powell call Odey a "dumb f*cking c*nt" and telling her to "get
the f*ck out." Odey responded by calling Powell a "f*cking a*shole." They knocked on
the door and arrested Odey and Powell for disorderly conduct. Odey, who reeked of
alcohol, struggled with officers as she was taken into police custody. On cross, Ptl. Smith
-3-
testified that he did not use any tests, such as field sobriety tests or a Breathalyzer, to
determine Odey's level of alcohol consumption.
{¶8} Detective Sergeant Christopher Gallo responded to the second call. He was
the duty shift officer that evening. He arrived as the two were being arrested. He testified
that Odey was "extremely intoxicated to the point where her speech was slurred; there
was strong odor of alcohol emanating from her breath; her eyes were bloodshot. She
was also staggering and unbalanced. She was also very vulgar with her language."
{¶9} Jamie Webb, the neighbor from Apartment 34, testified that on December
30, 2012, he came home from a dinner with his wife at around 10:30 or 11:30 p.m., and
saw Powell in the hallway. Webb went to bed and his wife woke him up several times to
complain about the noise from Powell's apartment and that the noise therefore disturbed
and annoyed him. From Powell's apartment, he said he heard "a bunch of racket, a
bunch of noise, both of them arguing back and forth, screaming."
{¶10} He made the 4:49 a.m. call to police because he heard Odey yell:
"Someone help me. He's hurting me." Webb gave somewhat conflicting testimony about
how much the noise disturbed him. At first he said he "probably lost a good three, four
hours of sleep," because of it. Then on cross, he admitted he is a pretty sound sleeper
and slept soundly except for when his wife woke him up to complain about the noise. On
redirect and then recross, Webb testified that the arguing was ongoing through the night,
that his wife woke him up several times to tell him about it, and that once awake, he then
heard the noise for himself. He said that prior to calling the police, he heard the arguing
for approximately 30 minutes. When the police arrived the second time, he opened up
his apartment door just as his neighbor Chriss, opened hers. Webb said Chriss asked
him if he was also bothered by the noise, and he said yes. According to Webb, Chriss
informed him that she had already called the police to report the noise that evening.
{¶11} The State rested and the defense made a Crim.R. 29 motion for acquittal,
which was denied.
{¶12} Odey then testified in her own defense. According to Odey, she went at
Powell's apartment on the evening of December 30, 2012, to watch movies. She could
-4-
not remember what movies they watched. According to Odey, the neighbor, Webb, came
over to Powell's apartment with the bottle of whiskey at around 8:30 or 9:00 p.m. and
Webb began to drink heavily, ultimately drinking half the bottle.
{¶13} Odey claimed that Webb was drunk and got into an argument with Powell
and that this disagreement was why Webb later called the police to complain. She
stated: "* * * I think he just called the police to get back at Clay [Powell]." She claimed
Webb lied on the stand, that he was not sleeping that evening as he had testified.
{¶14} Odey denied drinking any of the whiskey that night, though she said she
had two beers during the movie. According to Odey, Powell had one shot of whiskey.
She admitted she was arguing with Powell that evening, but claimed the argument was
about the disagreement Powell had with Webb. She said if she yelled at Powell, she was
only "trying to calm him down." She did not recall telling Powell to "shut the f*ck up," but
admitted she might have called him an "a**hole." Odey claimed she was injured during
her arrest that night. However, she denied any criminal culpability, stating: "I didn't break
the law. I was just there."
{¶15} On cross, Odey testified that she believed she was arrested because she
"ha[d] a prior record." Specifically, she said she had prior disorderly conduct convictions,
but could not recall how many.
{¶16} After considering the evidence, the trial court found Odey guilty as charged.
The case proceeded immediately to sentencing where the trial court ordered Odey to
serve 30 days in jail, with jail-time credit of one day, and continued counseling while in jail.
The trial court imposed a $250 fine, plus court costs to be paid in monthly installments of
not less than $75.00 and to include a basic probation supervision fee of $10 per month
until her obligation was paid in full.
Anders No-Merit Brief
{¶17} An attorney appointed to represent an indigent criminal defendant may seek
permission to withdraw if the attorney can show that there is no merit to the appeal. See
generally Anders, 386 U.S. 738. To support such a request, appellate counsel is required
to undertake a conscientious examination of the case and accompany his or her request
-5-
for withdrawal with a brief referring to anything in the record that might arguably support
an appeal. Toney, 23 Ohio App.2d at 207. The reviewing court must then decide, after a
full examination of the proceedings, whether the case is wholly frivolous. Id.
{¶18} In Toney, this Court established guidelines to be followed when counsel of
record determines that an indigent's appeal is frivolous:
3. Where a court-appointed counsel, with long and extensive experience in
criminal practice, concludes that the indigent's appeal is frivolous and that
there is no assignment of error which could be arguably supported on
appeal, he should so advise the appointing court by brief and request that
he be permitted to withdraw as counsel of record.
4. Court-appointed counsel's conclusions and motion to withdraw as
counsel of record should be transmitted forthwith to the indigent, and the
indigent should be granted time to raise any points that he chooses, pro se.
5. It is the duty of the Court of Appeals to fully examine the proceedings in
the trial court, the brief of appointed counsel, the arguments pro se of the
indigent, and then determine whether or not the appeal is wholly frivolous.
6. Where the Court of Appeals makes such an examination and concludes
that the appeal is wholly frivolous, the motion of an indigent appellant for
the appointment of new counsel for the purposes of appeal should be
denied.
7. Where the Court of Appeals determines that an indigent's appeal is
wholly frivolous, the motion of court-appointed counsel to withdraw as
counsel of record should be allowed, and the judgment of the trial court
should be affirmed.
Id. at syllabus.
-6-
{¶19} In this case, Odey's appeal is wholly frivolous. First, Odey cannot argue that
any errors occurred prior to her trial. Her speedy trial rights were not violated; she
executed a waiver of time on December 31, 2012, the day she was arrested and charged.
No errors in the pre-trial procedure are apparent from the record.
{¶20} After a review of the transcript which is a part of the appellate record, there
are no errors in the bench trial of this case. Odey was represented by counsel during the
trial court proceedings. Witnesses were presented, and Odey's court-appointed attorney
effectively examined and/or cross-examined each witness. Trial counsel was
constitutionally effective.
{¶21} In his no-merit brief, Odey's appellate counsel mentions manifest weight as
a potential error, but ultimately concludes that such an argument would not support an
appeal. Weight of the evidence deals with the inclination of the greater amount of
credible evidence to support one side of the issue over the other. State v. Thompkins, 78
Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). In reviewing a manifest weight of the
evidence argument, the appellate court examines the entire record, weighs the evidence
and all reasonable inferences, considers the credibility of witnesses, and determines
whether in resolving conflicts in the evidence, 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. Id. A reversal on weight of the evidence is ordered only in exceptional
circumstances. Id.{¶22} In conducting our review, we proceed under the theory that when there are
two fairly reasonable views of the evidence or two conflicting versions of events, neither
of which is unbelievable, it is not within our province to choose which one should be
believed. State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125 (7th Dist.1999).
Rather, we defer to the trier of fact who is best able to weigh the evidence and evaluate
the credibility of witnesses by viewing the demeanor, voice inflections, eye movements,
and gestures of the witnesses testifying before it. See Seasons Coal Co. v. Cleveland,
10 Ohio St.3d 77, 80, 461 N.E. 1273 (1994); State v. DeHass, 10 Ohio St.2d 230, 231,
227 N .E.2d 1212 (1967).
-7-
{¶23} Odey was convicted of one count of disorderly conduct while intoxicated in
violation of R.C. 2917.11(B)(1), which provides:
No person, while voluntarily intoxicated, shall do either of the following: * *
* In a public place or in the presence of two or more persons, engage in
conduct likely to be offensive or to cause inconvenience, annoyance, or
alarm to persons of ordinary sensibilities, which conduct the offender, if
the offender were not intoxicated, should know is likely to have that effect
on others[.]
{¶24} Further, R.C. 2917.11(E)(3)(a), which elevates the offense to a fourth-
degree misdemeanor, as charged here, provides: "Disorderly conduct is a misdemeanor
of the fourth degree if any of the following applies: * * * The offender persists in disorderly
conduct after reasonable warning or request to desist."
{¶25} Here there is more than ample evidence to support the conviction. Odey
admitted to drinking that evening and officers testified that they noticed other indices of
intoxication such as slurred speech, staggering, bloodshot eyes, a strong odor of alcohol
emanating from her breath, the use of vulgar language and combative behavior. A fellow
resident of the apartment building, Chriss, called police the first time, in the very early
morning hours, to complain about the disturbance. Upon their arrival to the apartment
building, police could hear Odey yelling and cursing from the apartment building hallway.
Officers warned Odey to cease the behavior, but she did not.
{¶26} After Odey and Powell went back into the apartment, officers remained in
the hallway to determine whether the disturbance would continue. As soon as the door
shut, neighbors Chriss and Webb came into the hallway to complain that they had been
disturbed by Odey and Powell's behavior. While officers were talking to the neighbors,
they again heard Odey and Powell yelling at one another. Officers warned Odey and
Powell to cease their behavior a second time. Ptl. Smith offered to give Odey a ride or to
call her a taxi, but she ultimately declined. Officers then left the premises, only to be
summoned back several minutes later, after Webb called police to complain.
-8-
{¶27} Webb testified that the noise definitely disturbed him. He said that the
arguing was ongoing throughout the night, that his wife woke him up several times to
complain about it and that once awake, he heard the noise for himself. He said that prior
to calling police he heard the arguing for approximately 30 minutes.
{¶28} Odey testified that Webb was lying about being asleep that evening; she
said Webb had actually been at Powell's apartment drinking when the two men got into
an argument. Odey claimed Webb fabricated the noise complaint to police because he
was mad at Powell. However, another neighbor, Chriss, also complained about the
noise. In addition, police clearly heard the disturbance from the hallway on three
separate occasions. Police warned Odey and Powell to quiet down on two occasions, but
they did not comply.
{¶29} Moreover, resolving any evidentiary conflicts clearly fell within the province
of the fact-finder, who weighed the evidence and ultimately found Odey guilty.
Accordingly for all of these reasons, Odey's conviction is not against the manifest weight
of the evidence.
{¶30} Finally, there are no appealable issues with regard to Odey's sentence.
Misdemeanor sentences are reviewed for an abuse of discretion. R.C. 2929.22; State v.
White, 7th Dist. No. 12 MA 47, 2012-Ohio-6136, ¶25. An "[a]buse of discretion means an
error in judgment involving a decision that is unreasonable based upon the record; that
the appellate court merely may have reached a different result is not enough." State v.
Dixon, 7th Dist. No. 10 MA 185, 2013-Ohio-2951, ¶21.
{¶31} Here, the sentence imposed, 30 days in jail, was within the prescribed
penalties for a fourth-degree misdemeanor. R.C. 2929.24(A)(4) (enumerating that the
term of imprisonment for a fourth-degree misdemeanor shall be up to 30 days). Odey
received jail-time credit for the one day she served upon her arrest. Odey was afforded
her right to allocution. The trial court's sentencing decision was reasonable given Odey's
lengthy history of alcohol-related offenses, as detailed during the hearing, and Odey's
failure to respond to community control sanctions in the past. ("The Court has tried
counseling; the Court has tried the STAR program; the Court has tried a Children's
-9-
Services Case Plan; the Court has tried probation.") Accordingly, there are no appealable
errors concerning Odey's sentence.
Pro-se Brief
{¶32} Finally, we turn to Odey's pro-se brief, which consists of nothing more than
the facts and procedural history from the Anders brief filed by counsel with Odey's
handwritten notes in the margins and a handwritten addendum with the heading
"Conclusion," containing the following eight statements: "(1) Was unlawfully arrested and
excessive force; (2) Jamie Webb lied first sentence after taking oath; (3) Only witness for
defendant was not given an opportunity to testify; (4) Document filed was hearsay not
fact; (5) One of three officers not there at trial; (6) Defendant sustained irreversible
physical health and mental issues; (7) Rule 615 [sic] State v. Toney not submitted; (8)
Asked for dismissal of charges but not granted for prior record."
{¶33} Even if Odey's conclusions can be construed as assignments of error, she
provides no legal support for them, many of which are inappropriate in the context of this
appeal or were not raised in the trial court. While some leeway can be given to pro-se
litigants, nonetheless we are not required to consider a brief which totally fails to comport
with the Appellate Rules. In the exercise of our discretion we will not do so here.
{¶34} In sum, upon a review of the entire record, there are no appealable issues.
The judgment of the trial court is affirmed and counsel's motion to withdraw granted.
Donofrio, J., concurs.
Waite, J., concurs.