[Cite as State v. Harper, 2013-Ohio-2181.]
COURT OF APPEALS
COSHOCTON COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. Patricia A. Delaney, J.
-vs-
Case 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 :
:
-vs- : JUDGMENT ENTRY
:
BRENDA C. HARPER :
:
Defendant-Appellant : 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