      [Cite as State v. Stegall, 2012-Ohio-3792.]

                             IN THE COURT OF APPEALS
                     FIRST APPELLATE DISTRICT OF OHIO
                              HAMILTON COUNTY, OHIO



   STATE OF OHIO,                                   :   APPEAL NOS. C-110767
                                                                     C-120112
            Plaintiff-Appellee,                     :                C-120113
                                                        TRIAL NOS. 11TRD-54340
      vs.                                           :              C-11CRB-36101
                                                                   C-11CRB-36108
   DESHRAYONA STEGALL,                              :
            Defendant-Appellant.                    :       O P I N I O N.




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded

Date of Judgment Entry on Appeal: August 24, 2012


John P. Curp, City Solicitor, Charles A. Rubenstein, City Prosecutor, and Kevin O. Donovan,
Senior Assistant City Prosecutor, for Plaintiff-Appellee,

William R. Gallagher, for Defendant-Appellant.




Please note: This case has been removed from the accelerated calendar.
                          OHIO FIRST DISTRICT COURT OF APPEALS



S YLVIA S IEVE H ENDON , Judge.

       {¶1}   Defendant-appellant Deshrayona Stegall was involved in an automobile

accident on October 24, 2011. She was charged with making an improper left turn, a minor

misdemeanor offense, in violation of Cincinnati Municipal Code 506-80.

       {¶2}   Stegall pleaded not guilty to the charge, and the case was scheduled for trial

on November 18, 2011.      On that date, she appeared with counsel. Counsel moved to

withdraw from the matter, and moved for a continuance on Stegall’s behalf. The court

denied both motions.

       {¶3}   Before the trial began, Stegall interrupted while the judge was speaking.

During Stegall’s testimony at trial, the judge warned Stegall that she was being rude, and

directed her to answer the prosecutor’s questions.

       {¶4}   At the close of the trial, the judge had just begun to explain her guilty verdict

when Stegall walked out of the courtroom. When the courtroom bailiff brought Stegall back

into the courtroom, the following exchange took place:

       {¶5}   THE COURT: Come up, ma’am. All right. You’re being disrespectful –

       {¶6}   THE DEFENDANT: No, I’m not.

       {¶7}   THE COURT: -- even your witness is being disrespectful.

       {¶8}   THE DEFENDANT: No, I’m not.

       {¶9}   THE COURT: I made a finding of guilty. You’re speaking while I’m speaking.

Again you’re being disrespectful. I’m finding you in contempt, and you’ll be - - 30 days is

imposed. With regard to - - If you disrupt me again, I’ll issue another contempt finding and

find you for 30 more days and run it consecutive.

       {¶10} The court instructed that Stegall be taken into custody. The court told Stegall,

“If you continue to disrupt my courtroom, it will be another 30 days.”




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          {¶11} The court continued to speak with counsel and with one of the state’s

witnesses, when the bailiff stated, “Judge, give her another Contempt of Court. She had her

handcuffs behind her and put them in front of her.” The judge said, “Okay,” and then heard

other matters.

          {¶12} The court then told Stegall to step forward.

          {¶13} THE COURT: * * * [I]t’s my understanding, once again, after being warned

several times and found in contempt, now twice, that as you left my courtroom, you made a

reference to me in the words being that you called me a b**** as you exited the courtroom.

Based on that, once again, extremely disrespectful to me, to my courtroom staff, another 30

days will be imposed.

          {¶14} THE DEFENDANT: Can I say something?

          {¶15} THE COURT: You may say something.

          {¶16} THE DEFENDANT: I was not speaking to you, Your Honor.

          {¶17} THE COURT: Who were you referring to when you said the word, “b****”?

          {¶18} THE DEFENDANT: I said, “This is some b**** sh**.”

          {¶19} THE COURT: Excuse me?

          {¶20} THE DEFENDANT: “This is some b**** sh**.” Because I’ve been on the

opposite side of the table as far as being a criminal, and when I do right, I get wrong for it. I

have panic - - and I have anxiety attacks. That’s where I was going. I had to get my purse so

I could take my meds. I was about to go through an anxiety attack.

          {¶21} THE COURT: Okay. I still find that you called Judge Powers, me, and

referred to me as a bitch. And therefore, another 30 days is imposed. Okay.

          {¶22} THE DEFENDANT: So what’s that?

          {¶23} THE COURT: So you’re doing 90 days now for contempt. Thank you. You

may - -




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       {¶24} THE DEFENDANT: Where did you get that from, though?

       {¶25} THE COURT: What do you mean? How many times do I have to explain it?

You were disruptive, uncooperative. You were warned several times to stop your behavior.

You were placed in handcuffs behind you, and you transferred them to the front.

       {¶26} THE DEFENDANT: Because - - what would you have - -

       {¶27} THE COURT: There’s no excuse for this. You left the courtroom during the

trial when I was rendering my decision.

       {¶28} THE DEFENDANT: I had to get my medication.

       {¶29} THE COURT: You’re interrupting me now, and if you continue to interrupt,

I’ll find another 30 days.

       {¶30} The court imposed a fine for the traffic violation. In addition, the court

imposed a 60-day sentence for contempt in the case numbered C-11CRB-36101, and a

consecutive 30-day sentence for contempt in the case numbered C-11CRB-36108.

       {¶31} Stegall filed motions to mitigate her sentences in the contempt cases. The

court granted the motions on December 2, 2011, after Stegall had served only 15 days in jail.

The court remitted the remaining balance of 75 days on Stegall’s sentences.


                                 Refusal to Grant a Continuance


       {¶32} In her first assignment of error, Stegall argues that the trial court erred by

failing to grant a continuance of the trial. She contends that counsel was not prepared to

proceed and that he had not subpoenaed a necessary witness for trial.

       {¶33} We review a trial court’s denial of a continuance for an abuse of discretion.

See State v. Unger, 67 Ohio St.2d 65, 423 N.E.2d 1078 (1981). While there is no bright-line

test for determining whether to allow a continuance, a court may consider factors such as (1)

the length of the delay requested; (2) whether other continuances have been granted; (3) the




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inconvenience to the litigants, witnesses, opposing counsel, and the court; (4) whether the

requested delay is for legitimate reasons or whether it is dilatory, purposeful, or contrived;

(5) whether the defendant has contributed to the circumstance that gives rise to the request

for a continuance; and (6) other relevant factors. Id. at 67; State v. Brown, 163 Ohio App.3d

222, 2005-Ohio-4590, 837 N.E.2d 429 (1st Dist.).

       {¶34} In this case, counsel asked to withdraw from the case, saying he had taken the

case “based on other circumstances.” When Stegall indicated that a witness who had mailed

her a statement was not present, the court asked if the witness had been subpoenaed.

Counsel conceded that he had not done so because he “didn’t have time from which I was

retained to actually make that happen.”

       {¶35} The trial court noted that the state’s witnesses had been present for two hours

while the court had waited for defense counsel to appear. And the court indicated that it

would allow Stegall to call the witness to testify at a later time so that it could consider his

testimony. Stegall did not take advantage of the court’s offer, and rested after she testified

in her defense. Given these facts, we cannot say that the trial court abused its discretion by

denying Stegall’s request for a continuance. We overrule the first assignment of error.


                                          Criminal Contempt


       {¶36} In her second assignment of error, Stegall argues that the trial court erred by

summarily holding her in contempt of court.

       {¶37} The supreme court has defined “contempt of court” as “disobedience of an

order of a court. It is 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.”

Denovchek v. Bd. of Trumbull Cty. Commrs., 36 Ohio St.3d 14, 15, 520 N.E.2d 1362 (1988).

Because a contempt proceeding involves the court’s authority and proper functioning, we




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will not reverse a finding of contempt by a trial court unless it abused its discretion. Id.;

State ex rel. Ventrone v. Birkel, 65 Ohio St.2d 10, 11, 417 N.E.2d 1249 (1981).

         {¶38} Contempt proceedings are typically classified as civil or criminal, based on the

purpose of the sanctions imposed. Denovchek at 16; State v. Kilbane, 61 Ohio St.2d 201,

205, 400 N.E.2d 386 (1980).        If the sanctions are intended to coerce the contemnor to

comply with lawful orders of the court, the contempt proceeding is civil. Denovchek at 16;

Kilbane at 204-205. On the other hand, if the punishment is punitive in nature and is

designed to vindicate the court’s authority, the contempt proceeding is criminal. Denovchek

at 16; Kilbane at 204-205. “[C]ivil contempts are characterized as violations against the

party for whose benefit the order was made, whereas criminal contempts are most often

described as offenses against the dignity or process of the court.” State ex rel. Corn v.

Russo, 90 Ohio St.3d 551, 555, 740 N.E.2d 265 (2001).

         {¶39} Courts distinguish not only between civil and criminal contempt, but also

between indirect and direct contempt. Indirect contempt occurs outside the presence of the

court. In re Lands, 146 Ohio St. 589, 595, 67 N.E.2d 433 (1946). If a judge has no personal

knowledge of an alleged act of contempt because it was committed beyond the court’s actual

physical presence, then due process requires that the accused be accorded notice and a

hearing. See State ex rel. Seventh Urban, Inc. v. McFaul, 5 Ohio St.3d 120, 122, 449 N.E.2d

445 (1983); State v. Felson, 1st Dist. No. C-000470, 2001 Ohio App. LEXIS 1378 (Mar. 23,

2001).

         {¶40}    Direct contempt is defined in R.C. 2705.01 as “misbehavior in the presence

of or so near the court or judge as to obstruct the administration of justice.” See Kilbane at

204.     Therefore, a court may summarily punish a person for direct contempt on two

conditions.      First, the judge must have personal knowledge of the disruptive conduct

“acquired by his own observation of the contemptuous conduct.” In re Oliver, 333 U.S. 257,




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                           OHIO FIRST DISTRICT COURT OF APPEALS



275, 68 S.Ct. 499, 92 L.Ed. 682 (1948); R.C. 2705.01. Second, the 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.” Oliver at 275, citing Cooke v. United

States, 267 U.S. 517, 536, 45 S.Ct. 390, 69 L.Ed. 767 (1925); R.C. 2705.01; In re Thomas, 1st

Dist. No. C-030429, 2004-Ohio-373.

       {¶41} In the case numbered C-11CRB-36101, the trial court’s judgment entry

indicated that Stegall had been “found guilty of the following act of misbehavior in the

presence of the court, namely disruptive, disrepect[ful], left courtroom during trial &

decision – interrupted numerous times after several warnings; placed handcuffs in front,

uncooperative.” Stegall’s acts of interrupting the proceedings and of leaving the courtroom

while the court rendered its decision occurred in the judge’s presence and required

immediate punishment to vindicate the court’s authority.           So the court’s summary

punishment of the misbehavior was proper. Consequently, we affirm the court’s judgment

in that case.

       {¶42} In the case numbered C-11CRB-36108, the court’s judgment entry described

Stegall’s misbehavior as having “called Judge Powers ‘bitch’.”     The record demonstrates

that the judge had not heard the offending comment and had relied on information

provided by the bailiff to make the finding of contempt. So at most, Stegall’s conduct could

be classified as indirect contempt, for which she is entitled to the constitutional safeguards

afforded a criminal defendant. See Brown v. Executive 200, Inc., 64 Ohio St.2d 250, 252,

416 N.E.2d 610 (1980); In re Parker, 105 Ohio App.3d 31, 35, 663 N.E.2d 671 (4th

Dist.1995). Because Stegall was not afforded such safeguards, we reverse the court’s

judgment in the case numbered C-11CRB-36108.




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                            OHIO FIRST DISTRICT COURT OF APPEALS



                                              Conclusion


       {¶43} Having overruled the first assignment of error, we affirm the judgment in the

case numbered 11-TRD-54340. The second assignment of error is overruled to the extent

that it challenged the judgment in the case numbered C-11CRB-36101, and the trial court’s

judgment in that case is affirmed. We sustain the second assignment of error to the extent

that it challenged the judgment in the case numbered C-11CRB-36108, and that cause is

remanded to the trial court for any further proceedings it may wish to initiate consistent

with this opinion.


                                                                           Judgment accordingly.

HILDEBRANDT, P.J., and FISCHER, J., concur.

Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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