State v. Myers
| Decision Date | 04 August 2014 |
| Docket Number | CASE NO. CA2012-12-027 |
| Citation | 2014 Ohio 3384 |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. JOANN E. MYERS, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
CRIMINAL APPEAL FROM MADISON COUNTY MUNICIPAL COURT
Case No. CRB1200838
Zahid Siddiqi, London City Law Director, 102 S. Main Street, P.O. Box 724, London, Ohio 43140, for plaintiff-appellee
Joann E. Myers, 12488 Leeper Perkins Road, Marysville, Ohio 43040, defendant-appellant, pro se
{¶ 1} Defendant-appellant, Joann E. Myers, appeals pro se from her conviction in the Madison County Municipal Court for one count of disorderly conduct. For the reasons outlined below, we affirm.
{¶ 2} On October 16, 2012, a complaint was filed in the Madison County Municipal Court charging Myers with one count of disorderly conduct in violation of R.C. 2917.11(A)(2),a minor misdemeanor. The charge stemmed from allegations that while outside a gas station located in the city of London, Madison County, Ohio, on the morning of September 20, 2012, Myers "cursed, threatened bodily harm and continued to do so, until the victim," in this case Bill Cain, "walked away."
{¶ 3} On October 24, 2012, Myers appeared in court for her arraignment and entered a plea of not guilty. The trial court then scheduled the matter for a bench trial on November 13, 2012. Following the bench trial, Myers was found guilty and ordered to pay a $100 fine. Myers now appeals from her disorderly conduct conviction, raising three assignments of error for review.
{¶ 4} Before addressing Myers' three assignments of error, however, we find it necessary to inform Myers that "the right of self-representation is not a license for failure to comply with the relevant rules of procedure and substantive law." State v. Palmer, 12th Dist. Warren No. CA2005-08-097, 2006-Ohio-2712, ¶ 9. In other words, a criminal defendant appearing pro se is expected, as attorneys are, to abide by the rules of evidence and procedure, regardless of his or her familiarity with them. State v. Gellenbeck, 12th Dist. Fayette No. CA2008-08-030, 2009-Ohio-1731, ¶ 29. Moreover, pro se litigants are "not to be accorded greater rights and are bound to accept the results of their own mistakes and errors, including those related to correct legal procedures." State v. Kline, 12th Dist. Warren No. CA2004-10-125, 2005-Ohio-4336, ¶ 9. It is also not this court's duty to "root out" arguments that can support an assignment of error, nor will this court "conjure up questions never squarely asked or construct full-blown claims from convoluted reasoning." State v. Fields, 12th Dist. Brown No. CA2009-05-018, 2009-Ohio-6921, ¶ 7.
{¶ 5} Assignment of Error No. 1:
{¶ 6} THE TRIAL ERRED BY BASEING [sic] CONVICTION ON THE CONTENT OF SPEECH.
{¶ 7} In her first assignment of error, Myers initially argues her disorderly conduct conviction must be reversed because it was based on the content of her speech in violation of her First Amendment rights. In support of this claim, Myers alleges her conviction was improper as it was based solely upon her calling Cain a "stupid n****r."1 We disagree.
{¶ 8} Pursuant to R.C. 2917.11(A)(2), no person shall "recklessly cause inconvenience, annoyance, or alarm to another by * * * [m]aking unreasonable noise or an offensively coarse utterance, gesture, or display or communicating unwarranted and grossly abusive language to any person." The Ohio Supreme Court has held that "a person may not be found guilty of disorderly conduct under subsection (A)(2), which proscribes offensively coarse utterances and grossly abusive language, unless the words spoken are fighting words."2 State v. Bailey, 1st Dist. Hamilton No. C-010641, 2002-Ohio-3133, ¶ 16, citing State v. Hoffman, 57 Ohio St.2d 129 (1979), paragraph one of the syllabus. However, "[w]here a charge of disorderly conduct is not based on the content of the speech involved but only the manner of how the words are spoken, the fighting words requirement does not apply." Warrensville Heights v. Brown, 8th Dist. Cuyahoga No. 89346, 2008-Ohio-126, ¶ 12, quoting State v. Cunningham, 10th Dist. Franklin No. 06AP-145, 2006-Ohio-6373, ¶ 22.
{¶ 9} As noted above, the complaint charging Myers with disorderly conduct was based on allegations she "cursed" and "threatened bodily harm" until Cain walked away. These allegations were confirmed through the testimony from several witnesses elicited at trial, which firmly established Myers screamed and verbally threatened Cain outside a local gas station for a period of approximately 10 to 15 minutes. During this time, Cain testified Myers confronted him in a physically threatening manner and called him a "f***ing n****r," a "mother f***er," a "lowlife son of a bitch," and a "mother f***ing lowlife n****r." Cain also testified Myers jumped at him, told him to "come on hit me," and loudly proclaimed "n****r, I ain't scared of you."
{¶ 10} In addition, an eyewitness to the incident testified Myers called Cain "a bad bastard" and "a worthless mother f****r." Continuing, this eyewitness testified as follows:
She called him a n****r. She stood in the middle of the parking lot with her arms out like this screaming, hit me mother f****r, hit me mother f****r. I'll get you for assault. [Cain] said, woman, I don't even know you. What are you talking about. She - on and on and on and on.
There was also testimony Myers told Cain, "hit me in front of all these people and I'll have you thrown in jail," and that Myers later told a friend she "ran into [Cain] and I called him a f***ing n****r and we was in each other's face telling each other to hit each other[.]" According to Cain's testimony, Myers' disruptive and abusive behavior was upsetting to him.
{¶ 11} As can be seen, Myers' disorderly conduct conviction was based on much more than her merely uttering an offensive racial epithet at Cain. Rather, as a simple review of the record reveals, Myers' conviction was based on her overtly disruptive, threatening and abusive behavior towards Cain as he was standing outside a local gas station. See, e.g., In re A.R., 2010 ND 84, 781 N.W.2d 644 (). As the trial court explicitly found in reaching itsguilty verdict, Myers "did engage in making unreasonable noise and offensively course utterances and gestures, communicate * * * abusive language no doubt." We find no error in the trial court's findings. Therefore, as Myers' disorderly conduct conviction was not based solely on the content of her speech, but rather, on her overtly disruptive, threatening and abusive behavior, Myers' first argument is without merit and overruled.
{¶ 12} Myers also argues under her first assignment of error that her conviction must be reversed because disorderly conduct under R.C. 2917.11(A)(2) is unconstitutionally void for vagueness. Myers, however, did not raise this issue to the trial court. "Failure to raise the issue of the constitutionality of a statute or its application at the trial court level generally constitutes waiver of that issue and need not be heard for the first time on appeal." State v. Golden, 10th Dist. Franklin No. 13AP-927, 2014-Ohio-2148, ¶ 11.
{¶ 13} Regardless, even if Myers had not waived this issue, the Ohio Supreme Court has already determined that the statute "does provide adequate qualifying language to prevent the statute from being unconstitutionally vague." State v. Carrick, 131 Ohio St.3d 340, 2012-Ohio-608, ¶ 20. Therefore, because R.C. 2917.11(A)(2) is not unconstitutionally vague, Myers second argument is likewise without merit and overruled.
{¶ 14} Accordingly, having found no merit to either of the two arguments advanced by Myers herein, Myers first assignment of error is overruled.
{¶ 15} Assignment of Error No. 2:
{¶ 16} THE TRIAL COURT ERRED BY DENYING APPELLANT PRE-TRIAL.
{¶ 17} In her second assignment of error, Myers argues her disorderly conduct conviction must be reversed because the trial court did not hold a pretrial hearing contrary to its own local rules. However, a review of the trial court's local rules clearly establishes that a pretrial hearing is not mandatory and is within the trial court's sole discretion. The trial court's decision not to hold a pretrial hearing in this matter - a minor misdemeanor disorderlyconduct charge - does not constitute an abuse of discretion. Myers' first argument is therefore overruled.
{¶ 18} We also find no merit to Myers' claim she arrived at court on the day of trial, November 13, 2012, believing the court was merely planning on holding a pre-trial hearing. As a simple review of the record reveals, the trial court's journal entry submitted after Myers' arraignment clearly states the matter had been set for trial on that date. The record also contains a notice signed by Myers that explicitly states a trial had been scheduled for that day. In fact, Myers' own recognizance papers contain language specifically noting she was to appear at court that day to "answer to the charge[.]" Nothing about these filings indicates there would be "more than one hearing on this matter and that [November 13, 2012] would not be the actual trial hearing," as Myers now suggests. This is particularly true given the fact Myers herself subpoenaed a witness to appear at court that day to testify on her behalf. Therefore, Myers' second argument is also overruled.
{¶ 19} Accordingly, having found no merit to either of the two arguments advance by Myers herein, Myers' second assignment of error is overruled.
{¶ 20} Assignment of Error No. 3:
{¶ 21} THE TRIAL COURT ERRED BY DENYING APPELLANT'S RIGHT TO A FAIR TRIAL AND DENYING MOTION FOR CONTINUANCE.
{¶ 22} In her third assignment of error, Myers raises a variety of claims as to why her disorderly conduct conviction must be reversed. For instance,...
To continue reading
Request your trial