State v. Gambrel

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[Cite as State v. Gambrel, 2009-Ohio-5985.] COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee -vsDAVID GAMBREL Defendant-Appellant : : : : : : : : : : : JUDGES: Hon. William B. Hoffman, P.J. Hon. John W. Wise, J. Hon. Patricia A. Delaney, J. Case No. 08-CA-151 OPINION CHARACTER OF PROCEEDING: Appeal from the Licking County Municipal Court Case No. 08-TRC-9778 JUDGMENT: DISMISSED DATE OF JUDGMENT ENTRY: November 10,2009 APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: JONATHAN C. DIERNBACH 0071206 Assistant Law Director 40 W. Main Street Newark, Ohio 43055 DAVID GAMBREL, pro se 173 Bachman Avenue Newark, Ohio 43055 [Cite as State v. Gambrel, 2009-Ohio-5985.] Delaney, J. {¶1} Defendant-Appellant, David Gambrel, appeals from the judgment of the Licking County Municipal Court, convicting him of one count of OVI. The State of Ohio is Plaintiff-Appellee. {¶2} Upon review of the filings in this matter, we find Appellant s brief not to be in compliance with the Appellate Rules. {¶3} App. R. 16 states: {¶4} (A) Brief of the appellant {¶5} The appellant shall include in its brief, under the headings and in the order indicated, all of the following: {¶6} (1) A table of contents, with page references. {¶7} (2) A table of cases alphabetically arranged, statutes, and other authorities cited, with references to the pages of the brief where cited. {¶8} (3) A statement of the assignments of error presented for review, with reference to the place in the record where each error is reflected. {¶9} (4) A statement of the issues presented for review, with references to the assignments of error to which each issue relates. {¶10} (5) A statement of the case briefly describing the nature of the case, the course of proceedings, and the disposition in the court below. {¶11} (6) A statement of facts relevant to the assignments of error presented for review, with appropriate references to the record in accordance with division (D) of this rule. Licking County, Case No. 08-CA-151 3 {¶12} (7) An argument containing the contentions of the appellant with respect to each assignment of error presented for review and the reasons in support of the contentions, with citations to the authorities, statutes, and parts of the record on which appellant relies. The argument may be preceded by a summary. {¶13} (8) A conclusion briefly stating the precise relief sought. {¶14} Compliance with the above-stated rule is mandatory. Also, an appellate court may rely upon App.R. 12(A) in overruling or disregarding an assignment of error because of the lack of briefing on the assignment of error. Henry v. Gastaldo, 5th Dist. No. 2005-AP-03-0022, 2005-Ohio-4109, citing Hawley v. Ritley (1988), 35 Ohio St.3d 157, 159, 519 N.E.2d 390, 392-393; State v. Watson (1998), 126 Ohio App.3d, 316, 710 N.E.2d 340, discretionary appeal disallowed in (1998), 82 Ohio St.3d 1413, 694 N.E.2d 75. {¶15} Appellant's filing captioned Appellant s Brief On The Merits , fails to separately set forth any assignment(s) of error as required by App. R. 16(A)(2). Additionally, Appellant fails to set forth a single legal authority to support his contention that the trial court erred in the proceedings below. Thus, Appellant clearly did not follow the requirements of App.R. 16(A)(7). Essentially, Appellant s merit brief is a summary of testimony and argument as to Appellant s understanding of the law. {¶16} Because Appellant has wholly failed to set forth any assignment(s) of error, the Appellee was forced to extrapolate appropriate Assignments of Error in order to respond to Defendant-Appellant s brief . Appellee s Brief, p. 6. Additionally, Appellant has failed to cite any case law or authority supporting any claims that he makes in his brief. Licking County, Case No. 08-CA-151 4 {¶17} Recently, this Court observed in Musleve v. Musleve, 5th Dist. No. 2007CA00314, 2008-Ohio-3961, ¶21 (citation omitted), It is not the function of this court to construct a foundation for [an appellant s] claims; failure to comply with the rules governing practice in the appellate court is a tactic which is ordinarily fatal. {¶18} Appellant's appeal is hereby dismissed. By: Delaney, J. Hoffman, P.J. and Wise, J. concur. HON. PATRICIA A. DELANEY HON. WILLIAM B. HOFFMAN HON. JOHN W. WISE [Cite as State v. Gambrel, 2009-Ohio-5985.] IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee -vsDAVID GAMBREL Defendant-Appellant : : : : : : : : : : : JUDGMENT ENTRY Case No. 08-CA-151 For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Licking County Municipal Court is dismissed. Costs assessed to Appellant. _________________________________ HON. PATRICIA A. DELANEY _________________________________ HON. WILLIAM B. HOFFMAN _________________________________ HON. JOHN W. WISE

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