[Cite as State v. Smith, 2019-Ohio-4087.]




                             IN THE COURT OF APPEALS OF OHIO
                               SEVENTH APPELLATE DISTRICT
                                    MAHONING COUNTY

State of Ohio                                      Court of Appeals No. 2017 MA 137

        Appellee                                   Trial Court No. 2017 TRD 06873

v.

Chad Smith                                         DECISION AND JUDGMENT

        Appellant                                  Decided: October 1, 2019


                                            *****

        Paul J. Gains, Prosecuting Attorney, and Ralph M. Rivera, Assistant
        Prosecuting Attorney, for appellee.

        Rhys B. Cartwright-Jones, for appellant.

                                            *****

        SINGER, J.

        {¶ 1} This is an appeal by appellant, Chad Smith, from the September 27, 2017

judgment entry of the Mahoning County Court in Austintown, Ohio. For the reasons that

follow, we reverse the trial court’s judgment and dismiss the contempt citation.
       {¶ 2} Appellant sets forth one assignment of error:

              The trial court erred in finding the appellant guilty of direct, criminal

       contempt, and punishing him summarily.

                                       Background

       {¶ 3} In September 2017, appellant was charged with a violation of R.C.

4511.202, failure to control. On September 27, 2017, appellant appeared in the

Mahoning County Area Court No. 4, Austintown, Ohio, for arraignment on that charge.

       {¶ 4} Appellant’s case was called and the judge asked appellant, “did they tell you

I have a dress code here?” Appellant replied, “[t]hey did when I got here, yes.” At that

point, the judge instructed appellant to have a seat in the jury box because “[w]e hold

people in contempt for that.” Appellant complied.

       {¶ 5} The court again called appellant’s case, and appellant pled not guilty to the

traffic charge. The judge informed appellant he was being held in contempt for a dress

code violation and “[y]ou can do three days in jail or five days of day report.” The judge

then ordered appellant to five days of “day report.” The next day, appellant filed an

appeal of the contempt finding in the Seventh District Court of Appeals, as well as an

emergency motion to stay sentence pending appeal. On September 29, 2017, the Seventh

District Court of Appeals granted appellant’s motion to stay sentence pending appeal.

                                            Law

                               Direct Criminal Contempt

       {¶ 6} R.C. 2705.01 allows a court to “summarily punish a person guilty of

misbehavior in the presence of or so near the court or judge as to obstruct the

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administration of justice.” This is also known as direct contempt of court. See State v.

Local Union 5760, United Steelworkers of Am., 172 Ohio St. 75, 79, 173 N.E.2d 331

(1961). Contempt has been defined as “conduct which brings the administration of

justice into disrespect, or which tends to embarrass, impede or obstruct a court in the

performance of its functions.” Windham Bank v. Tomaszczyk, 27 Ohio St.2d 55, 271

N.E.2d 815 (1971), paragraph one of the syllabus.

       {¶ 7} Criminal contempt “is usually characterized by an unconditional prison

sentence * * * [which] 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.” Brown v. Exec. 200, Inc., 64 Ohio St.2d 250, 253-54, 416 N.E.2d 610 (1980).

The burden of proof in criminal contempt cases is proof beyond a reasonable doubt. Id.

at syllabus.

       {¶ 8} “[A]n appellate court reviewing a conviction for contempt may not assume,

in the absence of record evidence to the contrary, that the action of the lower court was

correct and lawful.” State v. Treon, 188 N.E.2d 308 (8th Dist.1963). Thus, “[t]he guilt of

a person accused of contempt must be shown affirmatively in the record before a

reviewing court may affirm.” Id.

       {¶ 9} Two conditions must be met before a court may summarily punish a person

for direct contempt. First, the trial court “must have personal knowledge of the disruptive

conduct ‘acquired by his own observation of the contemptuous conduct.” State v. Stegall,

1st Dist. Hamilton Nos. C-110767, C-120112 and C-120113, 2012-Ohio-3792, ¶ 40,

quoting In re Oliver, 333 U.S. 257, 275, 68 S.Ct. 499, 92 L.Ed. 682 (1948). Second, “the

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conduct must pose ‘an open threat to the orderly procedure of the court and such a

flagrant defiance of the person and presence of the judge before the public’ that, if ‘not

instantly suppressed and punished, demoralization of the court's authority will follow.’”

Stegall at ¶ 40, quoting In re Oliver.

       {¶ 10} On appeal, contempt findings and sanctions should not be reversed unless

the trial court abused its discretion. State ex rel. Ventrone v. Birkel, 65 Ohio St.2d 10, 11,

417 N.E.2d 1249 (1981). An abuse of discretion consists of more than an error of

judgment, it connotes an attitude on the part of the trial court that is unreasonable,

unconscionable, or arbitrary. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450

N.E.2d 1140 (1983).

                                          Analysis

       {¶ 11} Appellant argues that under general law, a one-time dress code violation

does not give rise to direct, criminal contempt deserving of a summary punishment.

Appellant contends he came to court directly from an outdoor labor job, and dressed

accordingly. Appellant maintains he had no special, prior order directing him to dress in

any particular way for court, as he only had the traffic citation which contained no

language about court attire. Appellant submits he engaged in no disagreement with the

court, yet he was sentenced to jail.

       {¶ 12} Appellee, state of Ohio, counters the trial court did not abuse its discretion

in finding appellant in contempt of court as his attire was so lacking in decorum and

dignity that it constituted a threat to the administration of justice. Appellee asserts the



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court had direct knowledge of appellant’s attire, and appellant’s conduct would

demoralize the court’s authority if the court did not instantly address his attire and punish

appellant.

       {¶ 13} Upon review, appellant was found by the judge to have violated the court’s

dress code and was held in contempt and was sentenced to jail. Since the alleged

contemptuous conduct occurred in open court, it was of a direct nature. And, the finding

of contempt was criminal, given that no purge conditions were offered for the jail

sentence, and the court clearly sought to punish appellant.

       {¶ 14} An examination of the record, including the transcript of the hearing, shows

the record is devoid of any evidence suggesting what the court’s dress code permitted or

prohibited, as the court’s dress code is not included in the record. In addition, there is no

evidence regarding what garments appellant was wearing, or why or how these garments

were in violation of the court’s dress code. Without this evidence, it is impossible to

ascertain whether appellant breached the court’s dress code. Further, there is no evidence

in the record that appellant or his apparel interrupted or disrupted the court’s proceedings,

or threatened the administration of justice. Therefore, we find the record does not

support the contempt citation.

       {¶ 15} As there is no proof in the record which affirmatively shows that

appellant’s manner of dress obstructed the administration of justice and required an

immediate sanction to preserve the authority of the court, we find the trial court abused

its discretion and erred in finding appellant in direct, criminal contempt for violating the



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court’s dress code, and imposing a summary punishment. Accordingly, appellant’s

assignment of error is found well-taken.

       {¶ 16} The judgment of the trial court is reversed and the contempt citation is

dismissed. Appellee is ordered to pay the costs of this appeal pursuant to App.R. 24.



                                                                      Judgment reversed.



       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.



Arlene Singer, J.                              _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
Christine E. Mayle, P.J                                    JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


      Judges Arlene Singer, Thomas Osowik and Christine Mayle, Sixth District Court
of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.




              This decision is subject to further editing by the Supreme Court of
         Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
              version are advised to visit the Ohio Supreme Court’s web site at:
                       http://www.supremecourt.ohio.gov/ROD/docs/.



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