[Cite as Middletown v. Goldberg, 2017-Ohio-788.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                           BUTLER COUNTY




CITY OF MIDDLETOWN,                                :

        Plaintiff-Appellee,                        :   CASE NO. CA2016-06-122

                                                   :          OPINION
    - vs -                                                     3/6/2017
                                                   :

MICHAEL GOLDBERG,                                  :

        Defendant-Appellant.                       :



               CRIMINAL APPEAL FROM MIDDLETOWN MUNICIPAL COURT
                             Case No. 15 CRB 04709-A



Leslie S. Landen, Middletown City Prosecutor, Ashley M. Bretland, One Donham Plaza,
Middletown, Ohio 45042, for plaintiff-appellee

Fred S. Miller, Baden & Jones Bldg., 246 High Street, Hamilton, Ohio 45011, for defendant-
appellant



        PIPER, J.

        {¶ 1} Defendant-appellant, Michael Goldberg, appeals his conviction in the

Middletown Municipal Court for disorderly conduct.

        {¶ 2} Goldberg is married to Kia Goldberg, who had other children from a previous

relationship. Kia and her son, Ryan Brock, were estranged and had not spoken or seen each

other in years. After Kia's father passed away, the family held a memorial barbeque at the
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home of Kia's brother. Ryan attended the barbeque but Kia did not. After arriving at the

barbeque, Ryan's sister, Clarissa, told Ryan that Goldberg had thrown Kia to the floor at their

home. Ryan then had another sibling, Alex, drive him to his mother's home.

       {¶ 3} Once there, Alex and another passenger stayed in the car while Ryan went to

the door of his mother's apartment. Kia answered the door and told Ryan that she had not

been hurt. Goldberg came to the door and approached Ryan, who had blocked the door with

his foot. Although Goldberg told Ryan to leave, Ryan refused. At that point, Goldberg

pushed Ryan and was near Ryan's face. Ryan started to return to the car, but Goldberg

followed Ryan. Goldberg then grabbed Ryan by the throat and pinned him against the car.

During this time, Goldberg was loud, aggressive, and agitated – telling Ryan that he was

going to kill him.

       {¶ 4} Ryan called 9-1-1, and waited for police. Police Officer Jordan Wagers was

dispatched to the scene and spoke with Ryan upon arriving at Kia and Goldberg's apartment.

Ryan told Officer Wagers that Goldberg was belligerent with him, pinned him against the car,

grabbed him by the throat, and threatened to kill him. Officer Wagers then tried to speak to

Goldberg, who told Officer Wagers that neither he nor his wife had any reason to talk to

police. Goldberg then told Officer Wagers to leave. While Goldberg tried several times to

slam the door shut, another officer, who had also arrived at the scene, put her foot in the

door. Officers then tried to check on Kia's safety. Eventually, Officer Wagers placed

Goldberg under arrest.

       {¶ 5} While driving to the police station, Goldberg became belligerent toward Officer

Wagers, screaming and yelling that he was going to find Officer Wagers' home and kill him.

Goldberg continued this behavior once he arrived at the jail. Goldberg was charged by

complaint with domestic violence and menacing. The complaint, titled Record of Arrest, was

signed by Officer Wagers.
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        {¶ 6} Goldberg pled not guilty, and the matter proceeded to a bench trial. The state

withdrew the menacing charge, and the trial court found Goldberg guilty of disorderly

conduct, a lesser included offense of domestic violence. The trial court sentenced Goldberg

to a fine and court costs. Goldberg now appeals his conviction, raising the following

assignments of error.

        {¶ 7} Assignment of Error No. 1:

        {¶ 8} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-

APPELLANT WHEN IT PROCEEDED TO CONDUCT A TRIAL WHEN THERE WAS NO

VALID COMPLAINT OR OTHER CHARGING INSTRUMENT.

        {¶ 9} Goldberg argues in his first assignment of error that his complaint was invalid

because it was not notarized.

        {¶ 10} The filing of a valid complaint is a prerequisite to the municipal court obtaining

subject-matter jurisdiction. State v. Mbodji, 129 Ohio St.3d 325, 2011-Ohio-2880, ¶ 21.

Subject-matter jurisdiction cannot be waived or forfeited, and can be raised at any time. Id. at

¶ 10; Crim.R. 12(C)(2).1

        {¶ 11} According to Crim.R. 3, "the complaint is a written statement of the essential

facts constituting the offense charged. It shall also state the numerical designation of the

applicable statute or ordinance. It shall be made upon oath before any person authorized by

law to administer oaths."

        {¶ 12} While the complaint charging Goldberg with domestic violence and menacing

was not notarized, it was nonetheless made upon oath before the deputy clerk of the

Middletown Municipal Court, who was authorized to administer the oath required by Crim.R.



1. A valid complaint is one made in good faith, and with procedural due process in mind essentially providing
notice. It does not mean it is free of any and all error or technically correct in all regards. Otherwise, we would
have no use for rules which specifically permit amendment of complaints at any time during the proceedings.
Crim.R. 7(D).
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3. According to R.C.1901.31(E), "the clerk of a municipal court may do all of the following:

administer oaths, take affidavits, and issue executions upon any judgment rendered in the

court * * *." R.C.1901.31(H) provides, "each deputy clerk * * *, when so qualified, may

perform the duties appertaining to the office of the clerk* * *."

       {¶ 13} The complaint charging Goldberg with domestic violence and menacing

references the two ordinances that prohibit domestic violence and menacing, and then

contains a statement of facts to support the charges, including a description of Goldberg's

actions against Ryan. The complaint is signed by Officer Wagers, and witnessed by the

deputy clerk. The deputy clerk's signature appears on the complaint, as well as a statement

that Officer Wagers' statement and signature were "sworn to before me and signed in my

presence."

       {¶ 14} As such, the complaint complied with Crim.R. 3 in that it included a statement

of the essential facts constituting the offenses charged, it stated the numerical designation of

the applicable statutes or ordinances, and it was made upon oath before the deputy clerk,

who was authorized by law to administer oaths. See State v. Taylor, 12th Dist. Butler No.

CA2014-02-040, 2015-Ohio-819, ¶ 11 (finding complaint valid where charging officer's oath

was made before the deputy clerk, despite lack of notarization).

       {¶ 15} Therefore, the complaint properly invoked the municipal court's jurisdiction,

and Goldberg's first assignment of error is overruled.

       {¶ 16} Assignment of Error No. 2:

       {¶ 17} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-

APPELLANT WHEN IT CONVICTED HIM OF DISORDERLY CONDUCT.

       {¶ 18} Goldberg argues in his second assignment of error that his conviction is not

supported by sufficient evidence and was otherwise against the manifest weight of the

evidence.
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       {¶ 19} When reviewing the sufficiency of the evidence underlying a criminal

conviction, an appellate court examines the evidence in order to determine whether such

evidence, if believed, would convince the average mind of the defendant's guilt beyond a

reasonable doubt. State v. Paul, 12th Dist. Fayette No. CA2011-10-026, 2012-Ohio-3205, ¶

9. The "relevant inquiry is whether, after viewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

proven beyond a reasonable doubt." State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph

two of the syllabus.

       {¶ 20} A manifest weight of the evidence challenge, on the other hand, examines the

"inclination of the greater amount of credible evidence, offered at a trial, to support one side

of the issue rather than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177,

2012-Ohio-2372, ¶ 14. To determine whether a conviction is against the manifest weight of

the evidence, the reviewing court must look at the entire record, weigh the evidence and all

reasonable inferences, consider the credibility of the witnesses, and determine whether in

resolving the conflicts in the evidence, the trier of fact clearly lost its way and created such a

manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.

State v. Graham, 12th Dist. Warren No. CA2008-07-095, 2009-Ohio-2814, ¶ 66.

       {¶ 21} "While appellate review includes the responsibility to consider the credibility of

witnesses and weight given to the evidence, these issues are primarily matters for the trier of

fact to decide." State v. Barnes, 12th Dist. Brown No. CA2010-06-009, 2011-Ohio-5226, ¶

81. An appellate court, therefore, will overturn a conviction due to the manifest weight of the

evidence only in extraordinary circumstances when the evidence presented at trial weighs

heavily in favor of acquittal. Id.

       {¶ 22} Although the legal concepts of sufficiency of the evidence and weight of the

evidence are both quantitatively and qualitatively different, a "determination that a conviction
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is supported by the manifest weight of the evidence will also be dispositive of the issue of

sufficiency." State v. Jones, 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, ¶ 19.

       {¶ 23} Goldberg was convicted of disorderly conduct in violation of Middletown

Municipal Codified Ordinance 648.04-1, which provides, "(a) No person shall recklessly

cause inconvenience, annoyance, or alarm to another, by doing any of the following: (1)

Engaging in fighting, in threatening harm to persons or property, or in violent or turbulent

behavior."

       {¶ 24} During the bench trial, the state presented evidence, that when viewed in a

light most favorable to the prosecution, proved that Goldberg committed disorderly conduct.

Ryan testified first, and explained how he arrived at the barbeque honoring his late

grandfather, and was told by his sister and brother that Goldberg had thrown their mother to

the floor. Ryan testified that when he arrived at his mother's apartment, Goldberg came to

the door and pushed him when Ryan tried to see if his mother was safe. According to Ryan's

testimony, Goldberg was "standing in [his] face," and telling him to leave. Goldberg followed

Ryan to the car, where he grabbed Ryan by the throat and held him against the car. Ryan

described Goldberg's demeanor as "very loud and aggressive." Ryan also testified that

Goldberg threated his life, stating that "he was going to kill me."

       {¶ 25} Officer Wagers also testified, and stated that he was dispatched to the

Goldbergs' apartment based on Ryan's 9-1-1 call. Officer Wagers testified that Ryan told him

that Goldberg had been belligerent and had threatened his life after grabbing his throat. After

Officer Wagers spoke with Ryan, he and another officer tried to speak with Goldberg but

Goldberg was "extremely belligerent, cussing towards us, saying that we didn't have any

reason to be at the residence, we didn't have any reason to talk to him or his wife, that we

needed to leave." Officer Wagers also testified that Goldberg tried to slam the door on him

and the other officer multiple times, but that the other officer had put her foot in the door to
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keep it open long enough to check on Kia's safety.

       {¶ 26} Officer Wagers testified that the officers then placed Goldberg under arrest

and that during the transport to the police station, Goldberg continued his belligerent

behavior. Specifically, Goldberg was screaming, yelling, and threatening Officer Wagers,

and Goldberg told Officer Wagers that he was going to find Officer Wagers' house and kill

him. Officer Wagers also testified that Goldberg told him that he was going to "kick my, the

'A' word or butt or whatever you want to say."

       {¶ 27} In his defense, Goldberg called Kia, who testified that she never saw Goldberg

touch Ryan in any way.        Kia also testified that Goldberg never pushed Ryan, never

threatened him, and that she only saw the two men arguing. Goldberg also called Ryan's

brother, Alex, who testified that he drove Ryan to their mother's apartment on the night in

question. Alex testified that he stayed in the car, that he saw Ryan and Goldberg arguing,

but that he did not observe Goldberg touch or threaten Ryan.

       {¶ 28} While there was contradictory testimony offered regarding Ryan and

Goldberg's interactions, the trial court was in the best position to judge the witness' credibility.

Moreover, Goldberg did not offer any testimony or evidence that his behavior while in Officer

Wagers' car was not belligerent or that he did not threaten Officer Wagers' life. When viewed

in a light most favorable to the prosecution, we find that Goldberg's conviction was supported

by sufficient evidence, and was not against the manifest weight of the evidence. As such,

Goldberg's second assignment of error is overruled.

       {¶ 29} Assignment of Error No. 3:

       {¶ 30} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-

APPELLANT WHEN IT DID NOT PROVIDE HIM THE OPPORTUNITY FOR ALLOCUTION.

       {¶ 31} Goldberg argues in his final assignment of error that the trial court erred by not

providing him an opportunity for allocution before pronouncing sentence.
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       {¶ 32} As this court has stated previously, "Crim.R. 32 does not merely give the

defendant a right to allocution; it imposes an affirmative requirement on the trial court to ask if

he or she wishes to exercise that right." State v. Larios, 12th Dist. Preble No. CA2009-07-

019, 2012-Ohio-4525, ¶ 21. As a result, the "requirement of allocution is considered fulfilled

when the conduct of the court clearly indicates to the defendant that he has a right to make a

statement prior to the imposition of sentence." State v. Wesley, 12th Dist. Butler No.

CA2015-04-077, 2015-Ohio-5031, ¶ 25. Crim.R. 32(A)(1) also requires the trial court to

afford "counsel an opportunity to speak on behalf of the defendant." "In a case in which the

trial court has imposed sentence without first asking the defendant whether he or she wishes

to exercise the right of allocution created by Crim.R. 32(A), resentencing is required unless

the error is invited error or harmless error." State v. Campbell, 90 Ohio St.3d 320, 326

(2000).

       {¶ 33} Immediately after announcing its guilty finding, the trial court had two people

standing before it: Goldberg and Goldberg's attorney. At that time, the trial court asked twice

if there was anything to be said. First, the trial court stated, "Anything you want to say?" and

although the court did not state counsel's name, the record indicates the court inquired of

Goldberg's counsel. The trial court then turned to Goldberg inquiring if he had anything he

wanted to say. While Goldberg's counsel offered no response, Goldberg himself ignored his

opportunity for allocution, deciding instead to contest the trial court's guilty finding. Goldberg

repeated the arguments as to why he should not be found guilty of disorderly conduct. The

trial court attempted to reiterate that there was sufficient evidence offered at trial to support

the guilty finding.

       {¶ 34} Goldberg continued to argue with the court and chose to assert his innocence

rather than offer any allocution. While a defendant does not waive the right to allocution by

not objecting, a defendant can waive the right once given the opportunity to address the
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court. See Campbell at 325 ("Of course, once the trial court has asked the defendant if he or

she wishes to speak an allocution, he or she may waive the right to do so"). Once the trial

court gave Goldberg the opportunity to address the court with allocution, Goldberg then

waived that right by arguing his innocence rather than speaking in mitigation.

       {¶ 35} Similarly, and regarding counsel's right to offer mitigation for his client, we find

no reversible error. Trial counsel was given the opportunity to address the court and instead

his client contested the trial court's guilty finding. Goldberg's counsel did not take advantage

of the invitation to address the court. In regard to allocution, the Ohio Supreme Court has

noted that where counsel "was actively responsible" for any failure in addressing the court,

such would be considered invited error. Id. at 324. The court is obligated to inquire or ask

for input, but cannot make the defendant or counsel participate. While counsel could have

attempted to mitigate his client's continued argument with the court and in mitigation of

punishment, counsel's lack of dialogue was harmless where counsel was actively responsible

for his lack of response. Id.

       {¶ 36} After both were invited to say something, Goldberg himself waived his

opportunity to address the court in mitigation while his counsel stood silent. The Ohio

Supreme Court has recognized the failure of allocution "is not prejudicial in every case." Id.

at 325.   Although counsel did not respond, Goldberg spoke up, choosing a different

discussion than mitigation. The lack of appropriate dialogue is not the fault of the court, but

rather the result of waiver on the part of Goldberg and invited error on the part of his counsel.

Furthermore, no prejudice being demonstrated, any error if existing, is considered harmless.

Having found no reversible error, Goldberg's final assignment of error is overruled.

       {¶ 37} Judgment affirmed.


       HENDRICKSON, P.J., and M. POWELL, J., concur.


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