[Cite as State v. Harper, 2013-Ohio-2181.]


                                       COURT OF APPEALS
                                   COSHOCTON COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                        Hon. Sheila G. Farmer, J.
                                                  Hon. Patricia A. Delaney, J.
-vs-
                                                  Case No. 2012CA00011
BRENDA C. HARPER

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Coshocton Municipal
                                               Court, Case No. CRB1100637


JUDGMENT:                                     Affirmed


DATE OF JUDGMENT ENTRY:                        May 24, 2013


APPEARANCES:


For Plaintiff-Appellee                        For Defendant-Appellant


No Appearance                                 JEFFREY G. KELLOGG
                                              Assistant Public Defender,
                                              Coshocton County
                                              239 N. Fourth Street
                                              Coshocton, Ohio 43812
Coshocton County, Case No. 2012CA00011                                                  2

Hoffman, P.J.


       {¶1}   Appellant, Brenda Harper, appeals her conviction from the Coshocton

Municipal Court. Appellant was charged with one count of domestic violence in violation

of R.C. 2919.25(A), a misdemeanor of the first degree.

       {¶2}   Following a court trial, Appellant was convicted of one count of disorderly

conduct a minor misdemeanor1 in violation of R.C. 2917.11. Appellant was sentenced

to a fine of $150 plus court costs. A timely notice of appeal was filed.

       {¶3}   Counsel for Appellant has filed a Motion to Withdraw and a brief pursuant

to Anders v. California (1967), 386 U.S. 738, rehearing den. (1967), 388 U.S. 924,

indicating that the within appeal was wholly frivolous and setting forth a proposed

Assignment of Error:

                                                I.

       {¶4}   “THE TRIAL COURT ERRED BY CONVICTED BRENDA HARPER OF

DISORDERLY CONDUCT UPON INSUFFICIENT EVIDENCE.”

       {¶5}   In Anders, the United States Supreme Court held if, after a conscientious

examination of the record, a defendant’s counsel concludes the case is wholly frivolous,

then he should so advise the court and request permission to withdraw. Id. at 744.



1
   We note the verdict form/order in this case does not contain the degree of offense. A
disorderly conduct conviction can either be a minor misdemeanor or a misdemeanor of
the fourth degree. R.C. 2917.11. We find the failure of the trial court to specify the
degree of offense or one of the factors necessary to elevate the level of offense requires
us to hold Appellant was convicted of the minor misdemeanor. See State v. Pelfrey
(2007), 112 Ohio St.3d 422, 426, 860 N.E.2d 735, 738 (“We hold that pursuant to the
clear language of R.C. 2945.75, a verdict form signed by [the trier of fact] must include
either the degree of the offense of which the defendant is convicted or a statement that
an aggravating element has been found to justify convicting a defendant of a greater
degree of a criminal offense.”).
Coshocton County, Case No. 2012CA00011                                                   3


Counsel must accompany his request with a brief identifying anything in the record that

could arguably support his client’s appeal. Id. Counsel also must: (1) furnish his client

with a copy of the brief and request to withdraw; and, (2) allow his client sufficient time

to raise any matters that the client chooses. Id. Once the defendant’s counsel satisfies

these requirements, the appellate court must fully examine the proceedings below to

determine if any arguably meritorious issues exist. If the appellate court also determines

that the appeal is wholly frivolous, it may grant counsel’s request to withdraw and

dismiss the appeal without violating constitutional requirements, or may proceed to a

decision on the merits if state law so requires. Id.

       {¶6}   Counsel for Appellant has complied with the Anders requirements.

Appellant has not filed a pro se brief raising any additional assignments of error. For

the reasons which follow, we affirm the judgment of the trial court:

                                                 I.

       {¶7}   In her only proposed Assignment of Error, Appellant argues her conviction

for disorderly conduct was not based upon sufficient evidence.

       {¶8}   Our review of the constitutional sufficiency of evidence to support a

criminal conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979), which requires a court of appeals to determine whether

“after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Id.; see also McDaniel v. Brown, 558 U.S.120, 130 S.Ct. 665, 673, 175 L.Ed.2d

582(2010) (reaffirming this standard); State v. Fry, 125 Ohio St.3d 163, 926 N.E.2d
Coshocton County, Case No. 2012CA00011                                                     4

1239, 2010–Ohio–1017, ¶ 146; State v. Clay, 187 Ohio App.3d 633, 933 N.E.2d 296,

2010–Ohio–2720, ¶ 68.

       {¶9}   R.C. 2917.11, Disorderly Conduct provides in relevant part,

       {¶10} (A) No person shall recklessly cause inconvenience, annoyance, or alarm

to another by doing any of the following:

       {¶11} (1) Engaging in fighting, in threatening harm to persons or property, or in

violent or turbulent behavior;

       {¶12} (2) Making unreasonable noise or an offensively coarse utterance,

gesture, or display or communicating unwarranted and grossly abusive language to any

person;

       {¶13} (3) Insulting, taunting, or challenging another, under circumstances in

which that conduct is likely to provoke a violent response;

       {¶14} (4) Hindering or preventing the movement of persons on a public street,

road, highway, or right-of-way, or to, from, within, or upon public or private property, so

as to interfere with the rights of others, and by any act that serves no lawful and

reasonable purpose of the offender;

       {¶15} (5) Creating a condition that is physically offensive to persons or that

presents a risk of physical harm to persons or property, by any act that serves no lawful

and reasonable purpose of the offender.

       {¶16} Recklessness is defined in R.C. 2901.22(C), which states:

       {¶17} A person acts recklessly when, with heedless indifference to the

consequences, he perversely disregards a known risk that his conduct is likely to cause

a certain result or is likely to be of a certain nature. A person is reckless with respect to
Coshocton County, Case No. 2012CA00011                                                     5


circumstances when, with heedless indifference to the consequences, he perversely

disregards a known risk that such circumstances are likely to exist.

       {¶18} The testimony revealed Appellant’s daughter was alarmed enough by

Appellant’s behavior to call the police. Further, the testimony revealed Appellant took a

large quantity of pills in front of police and her family stating, “I just took all my pills.

You’re going to watch me die.” Her actions required her transfer to a local hospital to

have her stomach pumped.

       {¶19} Based upon the evidence presented in a light most favorable to the

prosecution, we find a rational trier of fact could have found all of the necessary

elements for the offense of disorderly conduct beyond a reasonable doubt. For this

reason, Appellant’s proposed Assignment of Error is overruled.

       {¶20} After independently reviewing the record, we agree with counsel's

conclusion that no arguably meritorious claims exist upon which to base an appeal.

Hence, we find the appeal to be wholly frivolous under Anders, grant counsel's request

to withdraw, and affirm the judgment of the Coshocton Municipal Court.

By: Hoffman, P.J.

Farmer, J. and

Delaney, J. concur
                                              s/ William B. Hoffman _________________
                                              HON. WILLIAM B. HOFFMAN


                                              s/ Sheila G. Farmer __________________
                                              HON. SHEILA G. FARMER


                                              s/ Patricia A. Delaney _________________
                                              HON. PATRICIA A. DELANEY
Coshocton County, Case No. 2012CA00011                                                 6


          IN THE COURT OF APPEALS FOR COSHOCTON COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


STATE OF OHIO                               :
                                            :
       Plaintiff-Appellee                   :
                                            :
-vs-                                        :         JUDGMENT ENTRY
                                            :
BRENDA C. HARPER                            :
                                            :
       Defendant-Appellant                  :         Case No. 2012CA00011


              For the reasons stated in our accompanying Opinion, we find the appeal

to be wholly frivolous under Anders, grant counsel's request to withdraw, and affirm the

judgment of the Coshocton Municipal Court. Costs to Appellant.




                                            s/ William B. Hoffman_________________
                                            HON. WILLIAM B. HOFFMAN


                                            s/ Sheila G. Farmer __________________
                                            HON. SHEILA G. FARMER


                                            s/ Patricia A. Delaney _________________
                                            HON. PATRICIA A. DELANEY
