[Cite as Parma v. Brown, 2016-Ohio-7963.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                     No. 104219




                                    CITY OF PARMA

                                                     PLAINTIFF-APPELLEE

                                               vs.

                                     ERIC S. BROWN

                                                            DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                     Criminal Appeal from the
                                      Parma Municipal Court
                                     Case No. 16 TRD 01277

        BEFORE:         Jones, A.J., Boyle, J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: December 1, 2016
FOR APPELLANT

Eric Brown, pro se
2915 Russell Avenue
Parma, Ohio 44134


ATTORNEYS FOR APPELLEE

Timothy G. Dobeck
Parma Law Director
6611 Ridge Road
Parma, Ohio 44129

BY: John Spellacy
Assistant City Prosecutor
5555 Powers Boulevard
Parma, Ohio 44129




LARRY A. JONES, SR., A.J.:
       {¶1} In this accelerated appeal under App.R. 11.1 and Loc.App.R. 11.1,

defendant-appellant Eric S. Brown (“Brown”), appeals, pro se, his traffic ticket for

driving left of center.    We affirm.

       {¶2} In January 2016, Parma Patrolman Thomas Kuchler issued Brown a citation

for passing left of center, a violation of Parma Codified Ordinances 331.05.             On

February 18, 2016, Brown filed a timely demand for discovery pursuant to Crim.R. 16.

He also moved to dismiss his case, arguing that the traffic ticket was insufficient to

institute a case against him. On March 1, 2016, Brown again moved to dismiss his case

arguing the prosecutor had yet to comply with his demand for discovery. The trial court

denied his motions and proceeded to trial that same day. The trial court found Brown

guilty, fined him $100, and suspended $50 of the fine.

       {¶3} Brown filed a notice of appeal.       In his original brief on appeal, Brown

argued in his sole assignment of error that the trial court erred in denying his pre- and

post-trial motions.       This court sua sponte struck his brief pursuant to App.R. 16.

Brown subsequently filed an amended appellate brief in which he raised two assignments

of error. His first assignment of error again challenged the trial court’s denial of his of

pre- and post-trial motions.    His second assignment of error reads:   “Trial court erred in

adopting Judge[’s] decision.” Although the appellate rules do not allow parties to file

conforming briefs that add assignments of error once a brief has been struck under

App.R. 16, we will consider Brown’s assignments of error as his second assigned error

essentially makes the same argument as his first assigned error.
         {¶4} In his assigned errors, Brown argues that the trial court’s decision should be

reversed because the city violated Crim.R. 16.         Crim.R. 16 governs discovery and

applies to proceedings for traffic violations.      See Traf.R. 11(B)(2)(b).     Traf.R. 11

provides that requests and motions for discovery under Crim.R. 16 must be made before

trial.   Traf.R. 11(B)(2)(b).   A defendant may, “in order to raise objections prior to trial

under subsection (B)(2), request notice of the prosecuting attorney’s intention to use

evidence in chief at trial, which evidence the defendant is entitled to discover under

Criminal Rule 16.”     Traf.R. 11(D).

         {¶5} Pursuant to Crim.R. 16(B)(1)-(5), Brown requested the following discovery:

any statements he had made; his prior record; documents and tangible objects; reports of

examinations and tests; witness names and addresses; and any evidence favorable to him.

 The city argues that it provided all discovery to Brown during a pretrial — the traffic

ticket was the city’s only exhibit and Patrolman Kuchler its only witness. While that

may be the case, the docket does not reflect that the city responded to Brown’s discovery

request.    Crim.R. 16’s mandates are not discretionary even in minor traffic offense

cases; because Crim.R. 16 applies to proceedings for traffic violations and states that the

prosecuting attorney “shall” provide discovery, its mandates are just that — mandatory.

         {¶6} While there may have been some on-the-record discussion among the court

and parties with regard to discovery prior to trial, we are not privy to such communication

because Brown failed to file a transcript or an App.R. 9(C) statement of proceedings.

The duty to provide a transcript for appellate review falls upon the appellant. State v.
Haley, 1st Dist. Hamilton No. C-150748, 2016 Ohio App. LEXIS 3525, 2 (Sept. 2, 2016),

citing Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980).

In April 2016, Brown filed a motion with this court stating that the trial court’s court

reporter informed him that no transcript was available, so he intended to file a statement

of proceedings under App.R. 9(C). App.R. 9(C) provides:

      If no recording of the proceedings was made, if a transcript is unavailable,
      or if a recording was made but is no longer available for transcription, the
      appellant may prepare a statement of the evidence or proceedings from the
      best available means, including the appellant’s recollection. The statement
      shall be served on the appellee no later than twenty days prior to the time
      for transmission of the record pursuant to App.R. 10 and the appellee may
      serve on the appellant objections or propose amendments to the statement
      within ten days after service of the appellant’s statement; these time periods
      may be extended by the court of appeals for good cause. The statement
      and any objections or proposed amendments shall be forthwith submitted to
      the trial court for settlement and approval. The trial court shall act prior to
      the time for transmission of the record pursuant to App.R. 10, and, as
      settled and approved, the statement shall be included by the clerk of the trial
      court in the record on appeal.

      {¶7} As mentioned, Brown indicated to this court that he was pursuing an App.R.

9(C) statement of proceedings. This court gave him until May 6, 2016, to complete the

record; however, Brown failed to file a statement with this court nor did he seek any

further extensions of time in which to complete the record. On May 13, 2016, this court

ruled that the appeal would proceed on the App.R. 9(A) trial court record without the

App.R. 9(C) statement.

      {¶8} During oral argument, the parties discussed that they dealt with the discovery

issue with the trial court on the day of trial.   But because there was no transcript or

App.R. 9(C) statement of proceedings filed with this court, we do not know the content of
that discussion. What was discussed among the court and the parties about the discovery

issue is clearly germane to this appeal.   And because it is incumbent upon the appellant

to provide this court with either the transcript or App.R. 9(C) statement, we must presume

regularity.   See Haley at id.; State v. McClintock, 4th Dist. Meigs No. 13CA4,

2013-Ohio-5598, ¶ 13.

       {¶9} It bears mentioning, however, that the city admitted at oral argument that it

often responds to written discovery requests with oral discovery responses during

pretrials, and it claims that it did so in this case. Again, the docket does not indicate that

the city provided discovery to Brown. To avoid just this sort of problem in the future,

the best practice would be for the city to respond to a party’s discovery demand in writing

or to make sure that the case docket indicates that discovery was provided, if done so

orally, during a pretrial.

       {¶10} Although the city was obligated to respond to Brown’s discovery request

and the docket does not indicate that it complied, and because the record does not include

a transcript or App.R. 9(C) statement of proceedings, we are unable to review the merits

of Brown’s arguments. Therefore, we find that the trial court did not abuse its discretion

in denying Brown’s motions.

       {¶11} The assignments of error are overruled.

       {¶12} Judgment affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.
      It is ordered that a special mandate issue out of this court directing the Parma

Municipal Court carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




LARRY A. JONES, SR., ADMINISTRATIVE JUDGE

MARY J. BOYLE, J., and
FRANK D.CELEBREZZE, JR., J., CONCUR
