[Cite as State v. Guzman, 2021-Ohio-2168.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE OF OHIO,
CASE NO. 13-21-03
PLAINTIFF-APPELLEE,
v.
MICHAEL A. GUZMAN, OPINION
DEFENDANT-APPELLANT.
Appeal from Tiffin-Fostoria Municipal Court
Trial Court No. 20 CRB 1005
Judgment Reversed and Cause Remanded
Date of Decision: June 28, 2021
APPEARANCES:
Kurt A. Dauterman for Appellant
Charles R. Hall, Jr. for Appellee
Case No. 13-21-03
WILLAMOWSKI, P.J.
{¶1} Defendant-appellant Michael A. Guzman (“Guzman”) appeals the
judgment of the Tiffin-Fostoria Municipal Court, alleging that the trial court erred
in granting the State’s motion to disqualify defense counsel, Kurt A. Dauterman
(“Dauterman”). For the reasons set forth below, the judgment of the trial court is
reversed.
Facts and Procedural History
{¶2} On October 21, 2020, Guzman was charged with one count of violating
a consent agreement in violation of R.C. 2919.27(A), a misdemeanor of the first
degree. Doc. 1. The complaint described the alleged incident that gave rise to this
charge as follows:
On Saturday October 3, 2020 * * *, I Officer L. Elchert responded
to * * * a report of harassment. Upon arrival I spoke with [M.V.]
who proceeded to describe an event that had taken place * * * that
same morning. [M.V.] described a dark blue Chevrolet Silverado,
similar to the truck that she knows the father of her children
Michael A. Guzman to drive, travel west bound past her her home
* * * while she was outside of her residence. [M.V. said] that as
she observed the vehicle drive past her home she observed
Michael A. Guzman in the driver seat and that he yelled ‘F***ing
B****’ in her direction. [M.V.] advised that on 8/19/2020 she and
Mr. Guzman and their attorneys had entered into a Consent
Agreement * * *. Condition #2 of this agreement states: Neither
party shall abuse, harm, or attempt to harm, threaten, follow,
stalk, harass, force sexual relations upon, or commit sexually
oriented offenses against the other party. This agreement was
signed by [M.V.], Atty. John Kahler II, Michael Guzman, Atty.
Kurt Dauterman, Judge Steve C. Shuff * * *.
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Doc. 1. Dauterman was Guzman’s attorney in the process that yielded the consent
agreement. Doc. 9, Ex. A. Dauterman continued to represent Guzman after he was
charged with violating a consent agreement. Doc. 2.
{¶3} On January 22, 2021, the State filed a motion to disqualify Dauterman,
claiming that he was a necessary witness in this proceeding. Doc. 22. The trial
court held a hearing on this motion on January 26, 2021. Tr. 1. The State asserted
that, under the Ohio Supreme Court’s decision in State v. Smith, it was required to
prove that the defendant had been served with the consent agreement in order to
establish a violation of R.C. 2919.27(A). Tr. 4. See Doc. 22, citing State v. Smith,
136 Ohio St.3d 1, 2013-Ohio-1698, 989 N.E.2d 972 (affected by subsequent
legislative action in R.C. 2919.27(D)).
{¶4} The State presented the trial court with a certified copy of the docket
for the case in which the consent agreement had been issued. Doc. 22, Ex. A. An
entry in this docket stated that the consent agreement was “mailed to Aty Dauterman
with copy for Michael [Guzman.]” Doc. 22, Ex. A. The State then argued that
“[t]he only person who has knowledge of whether or not that * * * Consent Entry
was given” to Guzman was Dauterman. Tr. 6. The State further argued that, in this
case, Dauterman could not serve as a witness and as defense counsel. Tr. 9. For
these reasons, the State requested that the trial court “disqualify Dauterman as a
necessary witness in the case at bar.” Doc. 22.
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{¶5} On February 5, 2021, the trial court found that Dauterman’s “testimony
regarding service is necessary to the state’s prosecution in this matter” and “that the
individual roles of an advocate and a witness are unavoidably conflicting.” Doc.
28. As such, the trial court granted the State’s motion to disqualify Dauterman.
Doc. 26, 28. Guzman then filed his notice of appeal on February 22, 2021. Doc.
37. On appeal, Guzman raises the following assignments of error:
First Assignment of Error
Disqualification was not proper when the defense attorney
testimony sought is not admissible and unnecessary.
Second Assignment of Error
Defense counsel disqualification is not proper because state
failure to perform their own obligation to serve Defendant under
ORC 3113.31(F) for any prosecution of ORC 2919.27 does not
create necessity for Defense Counsel to testify against their client
contrary to Prof.Cond.R. 1.6 and ORC 2317.02(A).
First Assignment of Error
{¶6} Guzman argues that Dauterman should not have been disqualified
because his testimony was not admissible or necessary.1
1
While not designated as an assignment of error, appellant argues that the State is precluded from prosecuting
the violation of the consent entry in this case. The State also dedicates a substantial portion of its brief
advancing counterarguments on this point. However, this issue was not decided by the trial court, and this
matter is not properly before us nor decided by us on this appeal of a pretrial order.
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Legal Standard
{¶7} “Disqualification of an attorney is a drastic measure which should not
be imposed unless it is absolutely necessary.” City of Youngstown v. Joenub, Inc.,
7th Dist. Mahoning No. 01 CA 01, 2001-Ohio-3401, ¶ 15.
‘In determining whether an attorney should be disqualified under
Prof.Cond.R. 3.7 * * * the trial court must determine if the
attorney’s testimony is [1] admissible and [2] necessary.’ [3] If it
meets both criteria, then the trial court must disqualify counsel
unless it determines that one of the Rule 3.7 exceptions applies.
(Citations omitted). State v. Ponce, 2012-Ohio-4572, 977 N.E.2d 1062, ¶ 23 (7th
Dist.), quoting Ross v. Olsavsky, 7th Dist. Mahoning No. 09 MA 95, 2010-Ohio-
1310, ¶ 49.
{¶8} First, to determine admissibility, courts examine the contents of the
attorney’s testimony under the Ohio Rules of Evidence. See Ponce at ¶ 20. Second,
as to necessity, “[a] party’s simple declaration of an intention to call opposing
counsel as a witness at trial is insufficient to establish the necessity for
disqualification.” Ponce at ¶ 23, quoting State v. Johnson, 197 Ohio App.3d 631,
2011-Ohio-6809, 968 N.E.2d 541, ¶ 15 (6th Dist.). Rather,
the state [is] required to prove that [the] attorney * * * [is] a
necessary witness. Popa Land Co., Ltd. v. Fragnoli, 9th Dist.
[Medina] No. 08CA0062-M, 2009-Ohio-1299, 2009 WL 735969, ¶
16. If the evidence that is to be offered by an opposing attorney’s
testimony ‘can be elicited through other means, then the attorney
is not a necessary witness.’ Rock v. Sanislo, 9th Dist. [Medina] No.
09CA0031-M, 2009-Ohio-6913, 2009 WL 5154889, ¶ 9. In other
words, the attorney must be someone who has relevant, necessary
information that no other witness can provide. Popa Land at ¶ 15.
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Ponce at ¶ 23 quoting Johnson at ¶ 15 (6th Dist.).
{¶9} Third, if the testimony is admissible and necessary, “then counsel
should be disqualified, unless the trial court determines one of the exceptions found
in Prof.Cond.R. 3.7(a)(1), (2) or (3) applies.” Ponce, supra, at ¶ 26. Prof.Cond.R.
3.7(a) states:
(a) A lawyer shall not act as an advocate at a trial in which the
lawyer is likely to be a necessary witness unless one or more of the
following applies:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services
rendered in the case;
(3) the disqualification of the lawyer would work substantial
hardship on the client.
Prof.Cond.R. 3.7(a). See Prof.Cond.R. 3.7(a)(3) at Comment 4.
Legal Analysis
{¶10} In this case, the State relied on the Ohio Supreme Court’s decision in
State v. Smith to argue that Dauterman’s testimony was necessary. Tr. 4-5. Smith,
supra, at the syllabus. In State v. Smith, the Ohio Supreme Court held that
[t]o sustain a conviction for a violation of a protection order
pursuant to R.C. 2919.27(A)(2), the state must establish, beyond
a reasonable doubt, that it served the defendant with the order
before the alleged violation.
Id. In its judgment entry, the trial court relied on Smith and stated the following:
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[I]n order to obtain a conviction in this case, the state must prove,
beyond a reasonable doubt that the defendant was served with a
copy of the protection order he allegedly violated prior to October
3, 2020, the date on which he allegedly engaged in conduct that
violated the order.
Doc. 28, citing Smith at ¶ 28. Since Dauterman was the only person who knew
whether Guzman had been served with the consent agreement, the trial court
concluded that Dauterman’s “testimony regarding service is necessary to the state’s
prosecution of this matter.” Doc. 28.
{¶11} However, in 2017, the General Assembly amended R.C. 2919.27 and
added the following provision:
(D) In a prosecution for a violation of this section, it is not
necessary for the prosecution to prove that the protection order
or consent agreement was served on the defendant if the
prosecution proves that [1] the defendant was shown the protection
order or consent agreement or a copy of either or [2] a judge,
magistrate, or law enforcement officer informed the defendant
that a protection order or consent agreement had been issued, and
proves that the defendant recklessly violated the terms of the
order or agreement.
(Emphasis added.) R.C. 2919.27(D). See State v. Tolle, 4th Dist. Adams No.
19CA1095, 2020-Ohio-935, ¶ 27; State v. Lay, 2021-Ohio-892, --- N.E.3d ---, ¶ 11
(12th Dist.).
{¶12} R.C. 2919.27(D) provides the State with two alternatives to
establishing that the defendant was served with the protection order or consent
agreement. State v. Doss, 2d Dist. Champaign No. 2018-CA-41, 2019-Ohio-2247,
¶ 13; State v. Wilson, 6th Dist. Lucas No. L-20-1050, 2021-Ohio-1444, ¶ 8 (holding
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that the State must establish “either service of the order or constructive notice as
provided in R.C. 2919.27(D)”), citing R.C. 3113.31(F)(1); State v. Kidd, 8th Dist.
Cuyahoga No. 109126, 2020-Ohio-4994, ¶ 44 (holding that “[t]he lack of perfected
service of the protection order” does not necessarily “preclude prosecution for a
violation of R.C. 2919.27(A)”).
{¶13} We note that, in this case, the Defense filed a copy of the consent
agreement that was issued on August 20, 2020. Doc. 9, Ex. A. Doc. 17, Ex. A.
Guzman appears to have signed the consent agreement that he was alleged to have
violated. Doc. 9, Ex. A. Doc. 17, Ex. A. Yet the trial court does not appear to have
considered whether Guzman had been “shown * * * the consent agreement.” R.C.
2919.27(D). In fact, no mention was made of R.C. 2919.27(D) in these proceedings.
{¶14} The State, the Defense, and the trial court appear to have operated on
the assumption that the prosecution had no alternative but to prove that Guzman had
been served with the consent agreement. See Doc. 22, 28. Tr. 5. The trial court
appears not to have considered the two alternatives to proving service of the consent
agreement in R.C. 2919.27(D) in the process of determining whether Dauterman
was a necessary witness. If the State can establish one of the two alternatives in
R.C. 2919.27(D) without Dauterman’s testimony, then the analysis that led the trial
court to grant the State’s motion to disqualify could change dramatically.
{¶15} Given that the decision to disqualify an attorney is “a drastic measure
which should not be imposed unless it is absolutely necessary,” we reverse the
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decision to grant the State’s motion to disqualify and remand this case to give the
trial court the opportunity to consider the facts of this case under R.C. 2919.27(D).
Joenub, supra, at ¶ 15. As such, Guzman’s first assignment of error is sustained.
Second Assignment of Error
{¶16} Guzman raises another argument that asserts the trial court erred in
granting the State’s motion to disqualify. However, we have already reversed the
trial court’s decision to grant the State’s motion to disqualify because we found
merit in the arguments raised in his first assignment of error. As such, the issues
raised by Guzman in his second assignment of error are premature and are not
properly before us at this time. Having been rendered moot by our resolution of his
first assignment of error, we decline to address the issues in Guzman’s second
assignment of error pursuant to App.R. 12(A)(1)(c).
Conclusion
{¶17} Having found error prejudicial to the appellant in the particulars
assigned and argued, the judgment of the Tiffin-Fostoria Municipal Court is
reversed. This cause is remanded to the trial court for further proceedings consistent
with this opinion.
Judgment Reversed
And Cause Remanded
ZIMMERMAN and SHAW, J.J., concur.
/hls
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