State v. Harper

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[Cite as State v. Harper, 2013-Ohio-2181.] COURT OF APPEALS COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee JUDGES: Hon. William B. Hoffman, P.J. Hon. Sheila G. Farmer, J. Hon. Patricia A. Delaney, J. -vsCase No. 2012CA00011 BRENDA C. HARPER Defendant-Appellant OPINION CHARACTER OF PROCEEDING: Appeal from the Coshocton Municipal Court, Case No. CRB1100637 JUDGMENT: Affirmed DATE OF JUDGMENT ENTRY: May 24, 2013 APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant No Appearance JEFFREY G. KELLOGG Assistant Public Defender, Coshocton County 239 N. Fourth Street Coshocton, Ohio 43812 Coshocton County, Case No. 2012CA00011 2 Hoffman, P.J. {¶1} Appellant, Brenda Harper, appeals her conviction from the Coshocton Municipal Court. Appellant was charged with one count of domestic violence in violation of R.C. 2919.25(A), a misdemeanor of the first degree. {¶2} Following a court trial, Appellant was convicted of one count of disorderly conduct a minor misdemeanor1 in violation of R.C. 2917.11. Appellant was sentenced to a fine of $150 plus court costs. A timely notice of appeal was filed. {¶3} Counsel for Appellant has filed a Motion to Withdraw and a brief pursuant to Anders v. California (1967), 386 U.S. 738, rehearing den. (1967), 388 U.S. 924, indicating that the within appeal was wholly frivolous and setting forth a proposed Assignment of Error: I. {¶4} THE TRIAL COURT ERRED BY CONVICTED BRENDA HARPER OF DISORDERLY CONDUCT UPON INSUFFICIENT EVIDENCE. {¶5} In Anders, the United States Supreme Court held if, after a conscientious examination of the record, a defendant s counsel concludes the case is wholly frivolous, then he should so advise the court and request permission to withdraw. Id. at 744. 1 We note the verdict form/order in this case does not contain the degree of offense. A disorderly conduct conviction can either be a minor misdemeanor or a misdemeanor of the fourth degree. R.C. 2917.11. We find the failure of the trial court to specify the degree of offense or one of the factors necessary to elevate the level of offense requires us to hold Appellant was convicted of the minor misdemeanor. See State v. Pelfrey (2007), 112 Ohio St.3d 422, 426, 860 N.E.2d 735, 738 ( We hold that pursuant to the clear language of R.C. 2945.75, a verdict form signed by [the trier of fact] must include either the degree of the offense of which the defendant is convicted or a statement that an aggravating element has been found to justify convicting a defendant of a greater degree of a criminal offense. ). Coshocton County, Case No. 2012CA00011 3 Counsel must accompany his request with a brief identifying anything in the record that could arguably support his client s appeal. Id. Counsel also must: (1) furnish his client with a copy of the brief and request to withdraw; and, (2) allow his client sufficient time to raise any matters that the client chooses. Id. Once the defendant s counsel satisfies these requirements, the appellate court must fully examine the proceedings below to determine if any arguably meritorious issues exist. If the appellate court also determines that the appeal is wholly frivolous, it may grant counsel s request to withdraw and dismiss the appeal without violating constitutional requirements, or may proceed to a decision on the merits if state law so requires. Id. {¶6} Counsel for Appellant has complied with the Anders requirements. Appellant has not filed a pro se brief raising any additional assignments of error. For the reasons which follow, we affirm the judgment of the trial court: I. {¶7} In her only proposed Assignment of Error, Appellant argues her conviction for disorderly conduct was not based upon sufficient evidence. {¶8} Our review of the constitutional sufficiency of evidence to support a criminal conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), which requires a court of appeals to determine whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id.; see also McDaniel v. Brown, 558 U.S.120, 130 S.Ct. 665, 673, 175 L.Ed.2d 582(2010) (reaffirming this standard); State v. Fry, 125 Ohio St.3d 163, 926 N.E.2d Coshocton County, Case No. 2012CA00011 4 1239, 2010 Ohio 1017, ¶ 146; State v. Clay, 187 Ohio App.3d 633, 933 N.E.2d 296, 2010 Ohio 2720, ¶ 68. {¶9} R.C. 2917.11, Disorderly Conduct provides in relevant part, {¶10} (A) No person shall recklessly cause inconvenience, annoyance, or alarm to another by doing any of the following: {¶11} (1) Engaging in fighting, in threatening harm to persons or property, or in violent or turbulent behavior; {¶12} (2) Making unreasonable noise or an offensively coarse utterance, gesture, or display or communicating unwarranted and grossly abusive language to any person; {¶13} (3) Insulting, taunting, or challenging another, under circumstances in which that conduct is likely to provoke a violent response; {¶14} (4) Hindering or preventing the movement of persons on a public street, road, highway, or right-of-way, or to, from, within, or upon public or private property, so as to interfere with the rights of others, and by any act that serves no lawful and reasonable purpose of the offender; {¶15} (5) Creating a condition that is physically offensive to persons or that presents a risk of physical harm to persons or property, by any act that serves no lawful and reasonable purpose of the offender. {¶16} Recklessness is defined in R.C. 2901.22(C), which states: {¶17} 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. A person is reckless with respect to Coshocton County, Case No. 2012CA00011 5 circumstances when, with heedless indifference to the consequences, he perversely disregards a known risk that such circumstances are likely to exist. {¶18} The testimony revealed Appellant s daughter was alarmed enough by Appellant s behavior to call the police. Further, the testimony revealed Appellant took a large quantity of pills in front of police and her family stating, I just took all my pills. You re going to watch me die. Her actions required her transfer to a local hospital to have her stomach pumped. {¶19} Based upon the evidence presented in a light most favorable to the prosecution, we find a rational trier of fact could have found all of the necessary elements for the offense of disorderly conduct beyond a reasonable doubt. For this reason, Appellant s proposed Assignment of Error is overruled. {¶20} After independently reviewing the record, we agree with counsel's conclusion that no arguably meritorious claims exist upon which to base an appeal. Hence, we find the appeal to be wholly frivolous under Anders, grant counsel's request to withdraw, and affirm the judgment of the Coshocton Municipal Court. By: Hoffman, P.J. Farmer, J. and Delaney, J. concur s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN s/ Sheila G. Farmer __________________ HON. SHEILA G. FARMER s/ Patricia A. Delaney _________________ HON. PATRICIA A. DELANEY Coshocton County, Case No. 2012CA00011 6 IN THE COURT OF APPEALS FOR COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee -vsBRENDA C. HARPER Defendant-Appellant : : : : : : : : : JUDGMENT ENTRY Case No. 2012CA00011 For the reasons stated in our accompanying Opinion, we find the appeal to be wholly frivolous under Anders, grant counsel's request to withdraw, and affirm the judgment of the Coshocton Municipal Court. Costs to Appellant. s/ William B. Hoffman_________________ HON. WILLIAM B. HOFFMAN s/ Sheila G. Farmer __________________ HON. SHEILA G. FARMER s/ Patricia A. Delaney _________________ HON. PATRICIA A. DELANEY

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