State v. Sandlin

Citation11 OBR 136,11 Ohio App.3d 84,463 N.E.2d 85
Parties, 11 O.B.R. 136 The STATE of Ohio; Williamson, Appellee, v. SANDLIN; Montgomery, Appellant.
Decision Date29 July 1983
CourtUnited States Court of Appeals (Ohio)

Syllabus by the Court

A nonexistent photograph of an alleged victim of crime is not available to or within the possession, custody or control of the state as contemplated by Crim.R. 16(B)(1)(c). A trial court, therefore, may not order the prosecution to furnish the defendant with such a nonexistent photograph.

Daniel J. Herron, Jefferson, for appellee Gale E. Williamson.

Adrian P. Cimerman, Bowling Green, for appellant Elvest P. Sandlin.

Alan R. Mayberry, Asst. Pros. Atty., for appellant Betty D. Montgomery.

Gregory A. White, Elyria, urging reversal for amicus curiae, Ohio Pros. Attys. Ass'n.

RESNICK, Judge.

This is an appeal from the Wood County Court of Common Pleas. The defendant herein, Elvest P. Sandlin, was indicted for the criminal offense of felonious assault in violation of R.C. 2903.11. 1 Subsequently, defendant pleaded not guilty to said charge. On October 18, 1982, defendant filed a motion in the Wood County Court of Common Pleas requesting that court to direct the prosecutor to furnish defendant's attorney with a recent facial photograph of the alleged victim of defendant's alleged felonious assault. Defendant stated in his motion that such photograph was necessary for the adequate investigation and preparation of his case. The Wood County Prosecutor filed a memorandum in opposition to defendant's motion on October 19, 1982, and defendant filed his response to the state's opposing memorandum on October 21, 1982. In defendant's responsive memorandum, defendant asserted that the facial photograph of the alleged felonious assault victim was necessary in order to obtain witnesses who, although unfamiliar with the alleged victim's name, would, however, be able to recognize a picture of the alleged victim.

On October 28, 1982, the Honorable Gale E. Williamson, the trial judge presiding over this matter (and appellee herein), issued an order granting defendant's request that the state produce a recent facial photograph of the alleged victim of defendant's alleged felonious assault. Subsequently, the state filed a motion for reconsideration of said order and defendant then filed a memorandum opposing the state's reconsideration motion. On November 16, 1982, the trial court denied the state's motion for reconsideration of the trial court's prior order which directed the state to furnish defendant's counsel with said photograph.

The state requested an oral hearing regarding the trial court's denial of its motion for reconsideration; said request was granted and a hearing was conducted on November 23, 1982. The trial court, on December 1, 1982, filed its order denying the state's motion for reconsideration, and in an accompanying memorandum, the trial court expressly limited defense counsel's use of the photograph.

Subsequently, on December 10, 1982, defendant requested a continuance of the scheduled January 18, 1983, trial date, claiming that the state's continued failure to provide defendant's counsel with the photograph of the alleged felonious assault victim, as ordered, rendered defense counsel incapable of adequately investigating the case and competently preparing a defense. The trial court conducted an oral hearing concerning defendant's motion for continuance on December 13, 1982, at which time Betty Montgomery, the Wood County Prosecutor and appellant herein, refused to comply with the order of the trial court. Consequently, Montgomery was found to be in contempt of an order of the trial court and was remanded to the custody of the Wood County Sheriff for transportation to the Wood County Jail.

On this same date (December 13, 1982), the state filed in this court a motion to stay the enforcement of the trial court's contempt order pending appeal of this matter, which this court granted. The cause is now before us on the merits. 2 At the outset, we recognize that the contempt issue must initially be reviewed on two levels. State v. Kilbane (1980), 61 Ohio St.2d 201, 203, 400 N.E.2d 386 ; Cincinnati v. Cincinnati District Council 51 (1973), 35 Ohio St.2d 197, 299 N.E.2d 686 , certiorari denied (1974), 415 U.S. 994. First, appellant's conduct must be examined to determine whether such conduct constituted direct (R.C. 2705.01) or indirect (R.C. 2705.02) contempt. Second, we must review the record before us to ascertain whether appellee proceeded under the trial court's civil or criminal contempt powers. See Kilbane, supra, at 203, 400 N.E.2d 386. In the instant case, as in Kilbane supra, the trial judge summarily found appellant in contempt without specifying under what authority he (the trial judge) acted.

A court's direct contempt powers are set forth in R.C. 2705.01:

"A court, * * * may summarily punish a person guilty of misbehavior in the presence of * * * the court or judge as to obstruct the administration of justice."

Indirect contempt, however, is set forth in R.C. 2705.02, which states in relevant part:

"A person guilty of any of the following acts may be punished as for a contempt:

"(A) Disobedience of, or resistance to, a lawful writ, process, order, rule, judgment, or command of the court or an officer; * * * "

In reviewing the transcript of the hearing conducted on December 13, 1982, concerning defendant's request for a continuance of the trial date because of the state's continued failure to produce, as ordered, a recent facial photograph of the alleged victim of defendant's alleged felonious assault, appellant stated on the record in open court:

" * * * The State is in an uncomfortable posture that we [the state] cannot and will not be able to or do not wish to produce for the Court a photograph. No matter how long the continuance would continue, sir, we would not be producing that photograph--[sic ]"

Although R.C. 2705.02(A) inferentially classifies an act of disobedience to a court as indirect contempt, R.C. 2705.02 does not limit the power of a court to determine, in its sound discretion, whether such a disobedient act constituted direct contempt. Kilbane, supra, at 204, 400 N.E.2d 386; State v. Local Union 5760 (1961), 172 Ohio St. 75, 81, 173 N.E.2d 331 . In the case sub judice, appellant refused in open court and in the immediate view of the trial judge to produce the photograph as previously ordered. As such, appellant's conduct fell squarely within the direct contempt provisions of R.C. 2705.01, and the limits which R.C. Chapter 2705 otherwise places on contempt sanctions were inapplicable. Kilbane, supra, at 204, 400 N.E.2d 386; In re Roberts (1963), 175 Ohio St. 123, 191 N.E.2d 816 ; Myers v. State (1889), 46 Ohio St. 473, 22 N.E. 43. Further, appellee's summary treatment of appellant was well within the discretion of the trial court as provided in R.C. 2705.01.

Having determined that appellant was found by appellee to be in direct contempt, we must now focus our attention on whether such direct contempt was civil or criminal in nature. The Supreme Court observed in Kilbane, supra, at 204-207, 400 N.E.2d 386:

" 'Although there has never been a clear line of demarcation between criminal and civil contempts, it is usually said that offenses against the dignity or process of the court are criminal contempts, whereas violations which are on their surface offenses against the party for whose benefit the order was made are civil contempts. * * * Sentences for criminal contempt are punitive in nature and are designed to vindicate the authority of the court. * * * On the other hand, the purpose of sanctions in a case of civil contempt is to coerce the contemnor in order to obtain compliance with the lawful orders of the court. * * *' [Citations omitted.]

" * * *

"In summary, we note that if the contempt is civil the sanction is primarily coercive in nature and must allow for purging. If the contempt is criminal the sentence must be imposed primarily to vindicate the authority of the court and must be determinate. Conditions, however, may be attached to such a determinate sentence which allow for earlier termination."

The Supreme Court further expanded upon this distinction between criminal and civil contempt in Brown v. Executive 200, Inc. (1980), 64 Ohio St.2d 250, 253-254, 416 N.E.2d 610 :

"While both types of contempt contain an element of punishment, courts distinguish criminal and civil contempt not on the basis of punishment, but rather, by the character and purpose of the punishment. * * * Punishment is remedial or coercive and for the benefit of the complainant in civil contempt. Prison sentences are conditional. The contemnor is said to carry the keys of his prison in his pocket, * * * since he will be freed if he agrees to do as ordered. Criminal contempt, on the other hand, is usually characterized by an unconditional prison sentence. Such imprisonment operates not as a remedy coercive in its nature but as punishment for the completed act of disobedience, and to vindicate the authority of the law and the court. * * * Therefore, to determine if the sanctions in the instant cause were criminal or civil in nature, it is necessary to determine the purpose behind each sanction: was it to coerce the appellees to obey the consent judgment decree, or was it to punish them for past violations?" (Citations omitted.)

Accordingly, the appropriate standard for appellate review of contempt sentences is an inquiry into the primary purpose which the trial court sought to achieve by imposing such a sentence. Kilbane, supra, at 206, 400 N.E.2d 386; see Shillitani v. United States (1966), 384 U.S. 364, 370, 86 S.Ct. 1531, 1535, 16 L.Ed.2d 622. To accomplish this, review of the record is necessary in order to determine the purpose of the sentence. Although not dispositive of the trial court's primary purpose in imposing such a sentence, the actual sentence...

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