[Cite as State v. Fate, 2017-Ohio-8969.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. 17CAC030022
:
ROBERT A. FATE :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware Municipal
Court, case no. 17CRB00295
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: December 11, 2017
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
MELISSA A. SCHIFFEL JAMES S. SWEENEY
CITY OF DELAWARE 341 South Third St., Suite 100
70 North Union St. Columbus, OH 43215
Delaware, OH 43015
Delaware County, Case No. 17CAC030022 2
Delaney, P.J.
{¶1} Appellant Robert A. Fate appeals from the March 14, 2017 judgment entry
of the Delaware Municipal Court. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} The following facts are adduced from the criminal complaint filed January
30, 2017 in the Delaware Municipal Court.
{¶3} On or about January 29, 2017, appellant struck the victim, his spouse, in
the neck and pushed her to the ground twice. Appellant then attempted to choke the
victim by placing his hands around her neck and squeezing, causing injury. The offense
caused alarm to minor children in the house who witnessed the incident.
{¶4} Appellant was charged by criminal complaint with one count of domestic
violence pursuant to R.C. 2919.25(A), a misdemeanor of the first degree; one count of
assault pursuant to R.C. 2903.13(A), a misdemeanor of the first degree; and one count
of disorderly conduct pursuant to R.C. 2917.11(A), a minor misdemeanor. Appellant
entered pleas of not guilty; the matter proceeded to trial by jury; and appellant was found
guilty as charged. Appellant was sentenced to a jail term of 45 days.
{¶5} Appellant now appeals from the judgment entry of conviction and sentence.
Note on the Appellate Record
{¶6} The record does not contain a transcript of the proceedings in this case,
including the jury trial. On September 8, 2017, after both parties briefed the matter,
appellant moved this Court to supplement the record with a transcript of the jury trial,
noting “***a CD/DVD copy of appellant’s trial has been made available,” but “a written
Delaware County, Case No. 17CAC030022 3
transcript has not yet been completed.” Appellee filed a motion in opposition. We denied
appellant’s motion to supplement the record on September 18, 2017.
{¶7} Appellant raises one assignment of error:
ASSIGNMENT OF ERROR
{¶8} “THE TRIAL COURT ERRED WHEN IT ENTERED A JUDGMENT
AGAINST THE APPELLANT WHEN THE JUDGMENT WAS NOT SUPPORTED BY THE
MANIFEST WEIGHT OF THE EVIDENCE.”
ANALYSIS
{¶9} Appellant argues his convictions are against the manifest weight and
sufficiency of the evidence. Because we have not been provided with a transcript of the
proceedings pursuant to App.R. 9(A), we disagree and affirm.
{¶10} In reviewing assigned error on appeal we are confined to the record that
was before the trial court as defined in App.R. 9(A). This rule provides that the record on
appeal consists of “[t]he original papers and exhibits thereto filed in the trial court, the
transcript of proceedings, if any, including exhibits, and a certified copy of the docket and
journal entries prepared by the clerk of the trial court.”
{¶11} App.R. 9(B) also provides in part “ * * *[w]hen portions of the transcript
necessary for resolution of assigned errors are omitted from the record, the reviewing
court has nothing to pass upon and thus, as to those assigned errors, the court has no
choice but to presume the validity of the lower court’s proceedings, and affirm.”
{¶12} In Knapp v. Edwards Laboratories the Ohio Supreme Court stated: “The
duty to provide a transcript for appellate review falls upon the appellant. This is
Delaware County, Case No. 17CAC030022 4
necessarily so because an appellant bears the burden of showing error by reference to
matters in the record.” 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980).
{¶13} Appellant has not provided a transcript of the jury trial which began on
March 17, 2017. Without a transcript, we must presume the regularity of the trial court’s
proceeding. State v. Ellis, 5th Dist. No. 11-COA-015, 2011-Ohio-5646, *2; see, State v.
Keil, 5th Dist. Morrow No. 03CA0012, 2004-Ohio-5004 [Court of Appeals unable to review
domestic violence conviction when transcript not provided].
{¶14} Appellant’s sole assignment of error is overruled.
CONCLUSION
{¶15} Appellant’s sole assignment of error is overruled and the judgment of the
Delaware Municipal Court is affirmed.
By: Delaney, P.J.,
Wise, John W. and
Baldwin, J., concur.
State v. Fate
Combined Opinion