[Cite as State v. Lothes, 2012-Ohio-1388.]


STATE OF OHIO                     )                    IN THE COURT OF APPEALS
                                  )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

STATE OF OHIO                                          C.A. Nos.     11CA0015-M
                                                                     11CA0016-M
          Appellee                                                   11CA0017-M

          v.
                                                       APPEAL FROM JUDGMENT
GEORGE P. LOTHES III                                   ENTERED IN THE
                                                       WADSWORTH MUNICIPAL COURT
          Appellant                                    COUNTY OF MEDINA, OHIO
                                                       CASE Nos. 10CRB00376
                                                                  10CRB00443
                                                                  10CRB00444

                                  DECISION AND JOURNAL ENTRY

Dated: March 30, 2012



BELFANCE, Judge.

          {¶1}   George Lothes appeals his convictions for violating a civil protection order,

telecommunications harassment, and menacing by stalking. For the reasons set forth below, we

affirm.

                                                  I.

          {¶2}   Three complaints were filed against Mr. Lothes, each charging him with violating

a civil protection order. In addition, the first complaint charged him with menacing by stalking

while the others charged him with telecommunications harassment. Following a bench trial, Mr.

Lothes was found guilty on all six charges. The trial court sentenced him to an aggregate term of

189 days in jail with 177 days suspended.

          {¶3}   Mr. Lothes has appealed, raising six assignments of error for appeal.
                                                2


                                                II.

                                  ASSIGNMENT OF ERROR I

       APPELLANT WAS DENIED HIS RIGHT TO HAVE COUNSEL PRESENT AT
       TRIAL[.]

                                 ASSIGNMENT OF ERROR II

       THE STATE OFFERED INSUFFICIENT EVIDENCE TO PROVE THAT
       APPELLANT ACTED RECKLESSLY AS REQUIRED TO BE FOUND
       GUILTY OF VIOLATING R.C. []2919.27, VIOLATING A PROTECTIVE
       ORDER[.]

                                 ASSIGNMENT OF ERROR III

       THE STATE OFFERED INSUFFICIENT EVIDENCE TO PROVE THAT
       APPELLANT KNOWINGLY ENGAGED IN PROHIBI[T]ED CONDUCT IN
       VIOLATION OF R.C. []2903.211, MENACING BY STALKING[.]

                                 ASSIGNMENT OF ERROR IV

       THE STATE OFFERED INSUFFICIENT EVIDENCE TO PROVE THAT
       APPELLANT KNOWINGLY ENGAGED IN PROHIBITED CONDUCT IN
       VIOLATION    OF  R.C.   []2917.21, TELECOMMUNICATIONS
       HARASSMENT[.]

                                 ASSIGNMENT OF ERROR V

       THE TRIAL COURT APPLIED AN INCORRECT BURDEN OF PROOF IN
       CONVICTING APPELLANT[.]

                                 ASSIGNMENT OF ERROR VI

       THE TRIAL COURT’S VERDICT IS AGAINST THE MANIFEST WEIGHT
       OF THE EVIDENCE AND BASED UPON EVIDENCE NOT ADMITTED AT
       TRIAL[.]

       {¶4}    Mr. Lothes argues that the State failed to produce sufficient evidence to

demonstrate that he acted with the required culpable mental state for each of his convictions, that

his convictions were against the manifest weight of the evidence, and that he was deprived of his

right to counsel. However, because the record on appeal does not contain a transcript of the
                                                 3


proceedings, we are required to presume regularity with the proceedings below. See State v.

Campbell, 9th Dist. No. 10CA0120-M, 2011-Ohio-5433, ¶ 4-7.

       {¶5}    The official court reporter for the Wadsworth Municipal Court certified the record

before this Court. No written transcript was part of the record, but the record did include a disc

marked with the case numbers and the notation “trial to court[.]” After downloading the special

program required to access this disc, this Court discovered that the disc was an audio recording

of Mr. Lothes’ trial. The version of App.R. 9(A) in effect at the time Mr. Lothes filed his appeal

provided that “[p]roceedings recorded by means other than videotape must be transcribed into

written form.” (Emphasis added.); see also Loc.R. 5(A)(1)(b).

       {¶6}    While the record does contain a certified digital recording of Mr. Lothes’ trial, a

written transcript is not part of the record. See former App.R. 9(A) and Loc.R. 5(A)(1)(b). Mr.

Lothes initially moved to supplement the record with a written transcription of the disc. He also

transcribed portions of the trial in the body of his brief. This Court, through a magistrate’s order,

denied Mr. Lothes’ motion to supplement the record with the written transcript, determining that

it failed to comply with Loc.R. 6(C). Mr. Lothes filed a motion objecting to the magistrate’s

decision. Noting that the ruling at issue was an order and not a decision, this Court treated Mr.

Lothes’ motion as a motion to set aside a magistrate’s order. However, because it was filed more

than 10 days after the order was issued, this Court denied the motion as untimely. See Civ.R.

53(D)(2)(b); App.R. 34(C).

       {¶7}    “Accordingly, [Mr. Lothes] failed to provide this Court with a proper transcript.”

Campbell, 2011-Ohio-5433, at ¶ 6. “When an appellant fails to provide a complete and proper

transcript, a reviewing court will presume the regularity of the proceedings in the trial court and

affirm.” (Internal quotations and citations omitted.) Id. at ¶ 5. Although Mr. Lothes may
                                                 4


attempt to avail himself of other remedies, see, e.g., App.R. 26(B), we are constrained to

overrule his assignments of error due to the current state of the record.

       {¶8}    Mr. Lothes’ assignments of error are overruled.

                                                III.

       {¶9}    Mr. Lothes’ assignments of error are overruled, and the judgment of the

Wadsworth Municipal Court is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Wadsworth

Municipal Court, County of Medina, State of Ohio, to carry this judgment into execution. A

certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       EVE V. BELFANCE
                                                       FOR THE COURT
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MOORE, P. J.
CARR, J.
CONCUR.

APPEARANCES:

MATTHEW A. PALNIK, Attorney at Law, for Appellant.

PAGE C. SCHROCK, III, Assistant Director of Law, for Appellee.
