[Cite as State v. Adams, 2014-Ohio-2728.]




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



STATE OF OHIO,                              :          APPEAL NO. C-130559
                                                     TRIAL NO. C-13CRB-24244
         Plaintiff-Appellee,                :
   vs.
                                            :
                                                            O P I N I O N.
STEVEN ADAMS,
                                            :
         Defendant-Appellant.
                                            :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Vacated

Date of Judgment Entry on Appeal: June 25, 2014



Terry Nestor, Interim City Solicitor, and Melanie Reising, Senior Assistant City
Prosecutor, for Plaintiff-Appellee,

The Law Office of Steven R. Adams and Marguerite Slagle, for Defendant-
Appellant.




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



       {¶1}     Defendant-appellant Steven Adams, a defense attorney, appeals the

trial court’s judgment finding him in contempt of court under R.C. 2705.01 for his

conduct at a hearing, and imposing a sentence of 30 days in jail and a $250 fine,

which Adams could “purge” by apologizing to the court and to the city prosecutor.

Because the trial court abused its discretion in finding Adams in direct contempt, we

reverse the trial court’s judgment and vacate the order of contempt.

          The Alleged Contemptuous Conduct and Subsequent Hearing

       {¶2}     This contempt case arises from a driving-under-the-influence

prosecution in the Hamilton County Municipal Court, State v. Amanda Pate, case

number 12TRC-8709. Adams represented Pate in connection with that prosecution,

and at a motion-to-suppress hearing on July 31, 2013. At the hearing, Adams,

Melanie Reising, a prosecutor for the city of Cincinnati, and the trial court engaged in

a discussion regarding Pate’s driving privileges pending trial. Reising inquired as to

whether the court intended to suspend Pate’s driving privileges.         The following

exchange then took place:

       MR. ADAMS:        There was never a Court suspension here.           The

       suspension is under the Administrative License Suspension only, and

       if Ms. Reising knew the law, she would be able to articulate to you, but

       she --

       THE COURT: Hold on.

       MR. ADAMS: If she wanted to argue for a public safety suspension,

       she could have and should have done it early on. She did not. Now

       we’re over a year later or so, year and a half, and now she’s wanting to

       punish her? I mean, even if she was convicted of a DUI, she most

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      likely wouldn’t get more than six months here anyway. So for the

      Court to impose a punishment at this point in time and she’s got a

      valid license and not let her go back to Atlanta, work, travel to and

      from the courthouse is being vindictive and not fair.

      THE COURT: No, she’s not. She’s looking out for the public interest.

      MR. ADAMS: There’s no public interest here.

      THE COURT: There is a public interest.

      MR. ADAMS: If the public interest was six-months to a three-year

      suspension -- and we all know in this courthouse -- there was no

      accident here, there’s nothing egregious about this particular DUI. If

      she pled out, it would be a six-month suspension retroactive from the

      date of the incident. We’re well over a year, over a year and a half.

      There’s no public interest here. It’s punitive and it’s vindictive here.

      THE COURT: Don’t you agree that the -- first of all, we’ll do like we

      did in government, that we don’t attack the motives of either party.

      MR. ADAMS: No, no. Thomas Jefferson said, government is evil. He

      did say that. Government is evil.

      THE COURT: All right. Well, we don’t attack the motives of each

      other. * * *

      The trial court then addressed Pate directly and stated that the court would

expand her driving privileges, not suspend them. Reising and Adams continued to

argue with each other, even memorializing on the record that Reising would not give

Adams “any favors, any plea bargains ever again[,]” to which the trial court

responded, “All right. That’s enough.” The hearing adjourned.

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       {¶3}   On August 6, 2013, the trial court conducted an in-chambers meeting

with Adams and Reising, on the record, prior to a hearing on the Pate case. The trial

court admonished Adams: “I thought that you went pretty far afield in terms of your

behavior towards the City, in terms of [--] the Court asked several times -- actually

asked you both, but I asked you first not to engage in any kind of personal language

towards the City and the case.” Adams responded, “I didn’t do that, Judge. I have

the transcript. I did not do that.” After some further disagreement between the

court and Adams regarding Adams’s previous conduct, the following occurred:

       THE COURT: * * * We’ll take a look at the transcript and call it back

       for review of the transcript on that issue, all right?

       MR. ADAMS: What is the issue, Judge?

       THE COURT: Well, the issue is disrespectful behavior to counsel and

       to the Court.

       MR. ADAMS: Oh, well, I was not disrespectful to the Court. I was not

       disrespectful to the prosecutor.

       THE COURT: All right. Well, that’s obviously a question for later on

       after I see the transcript. I thought maybe you would have taken the

       opportunity to apologize to the prosecutor and to the Court.

       MR. ADAMS: No, Judge. I didn’t do anything improper. The Court

       on the day that this occurred did not say anything to me that I was

       improper, did not tell me to stop, did not give me any orders, so I

       didn’t do anything improper, Judge, nothing.

       {¶4}   The court journalized an entry in the Pate case setting a hearing date

for August 23, 2013, on the “conduct” of Adams and Reising. Adams filed a motion

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                    OHIO FIRST DISTRICT COURT OF APPEALS



objecting to the “conduct hearing,” arguing that the trial court had no authority to

hold such a hearing.

       {¶5}   The court held the hearing on August 23, 2013, where Adams objected

again to the court’s authority to hold a “conduct hearing.” The court clarified that it

was conducting a direct-contempt hearing under R.C. 2705.01.              The court then

addressed Adams as follows:

       My review of your conduct was that it was, in addition to being overly

       aggressive, very loud, aggressive towards the city prosecutor in such a

       way that it stimulated a -- I think what I would call an overreaction [by

       Reising] at the end of the hearing in defense of herself. I was actually

       shocked by your behavior, by how loud and aggressive you were.

       I was here in the courtroom so I could -- I could sense it. It was my

       courtroom. I had the impression that the level of tension was raised

       much, much higher than it ought to have been by you. I believe there

       was a lack of civility on your part, and I didn’t understand it.

                                          ***

       I’ve reviewed the transcript. One of the things that the transcript can’t

       capture -- although there are words there, the transcript can’t capture

       the tone, aggressiveness, attitude.

       {¶6}   The court then entered an order finding Adams in direct contempt

under R.C. 2705.01, and imposing a sentence of 30 days in jail and a $250 fine. The

court determined that Adams could “purge” the contempt by apologizing to the court

and to Reising by September 23, 2013.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶7}   Adams now appeals the trial court’s contempt order, which the trial

court stayed pending appeal.

                           Appealability of Contempt Order

       {¶8}   R.C. 2705.09 provides for the appealability of contempt orders. Courts

have held that in order for a contempt order to be final and appealable, it must

include both a finding of contempt and the imposition of a penalty or sanction. State

ex rel. Doe v. Tracy, 51 Ohio App.3d 198, 555 N.E.2d 674 (12th Dist.1988); Kahles v.

Luken, 1st Dist. Hamilton No. C-780675, 1979 Ohio App. LEXIS 9524, *5 (Dec. 12,

1979). Thus, as a general matter, where a contempt order gives the contemnor an

opportunity to purge the contempt, no final, appealable order exists. Carroll Cty.

Bur. of Support v. Brill, 7th Dist. Carroll No. 05 CA 818, 2005-Ohio-6788, ¶ 22,

citing Davis v. Davis, 11th Dist. Geauga No. 2004-G-2572, 2004-Ohio-4390, ¶ 6.

       {¶9}   Purge conditions in contempt orders generally seek to coerce

compliance with a court order. See, e.g., McRae v. McRae, 1st Dist. Hamilton No. C-

110743, 2012-Ohio-2463, ¶ 6. In this case, the trial court determined that Adams

could “purge” his contempt by issuing an apology.           The purge condition—the

apology—did not seek compliance with a court order, but was more akin to a

punishment. Moreover, Adams can no longer comply with the purge condition

because it expired on September 23, 2013.         Therefore, we determine that the

contempt order in this instance is a final, appealable order, despite the inclusion of a

“purge” condition.




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                    OHIO FIRST DISTRICT COURT OF APPEALS



                                 Direct Criminal Contempt

       {¶10} We turn now to the merits of Adams’s appeal, in which Adams raises

in a single assignment of error that the trial court abused its discretion in finding

Adams in direct contempt under R.C. 2705.01.               As recognized by Adams’s

assignment of error, a determination of contempt by a trial court is reviewed for an

abuse of discretion. State v. Kilbane, 61 Ohio St.2d 201, 400 N.E.2d 386 (1980),

paragraph one of the syllabus. An abuse of discretion requires a finding that the trial

court’s decision was unreasonable, arbitrary, or unconscionable.           Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶11} 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

administration of justice[,]” also known as direct contempt. In re Thomas, 1st Dist.

Hamilton No. C-030429, 2004-Ohio-373, ¶ 4.              By contrast, indirect contempt

involves acts occurring outside the presence of the court. Id.

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

person for contempt: (1) 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); and (2) “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.’ ” Stegall at ¶ 40, quoting In re Oliver at 275.




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                   OHIO FIRST DISTRICT COURT OF APPEALS



       {¶13} In addition to the distinction in contempt proceedings between direct

and indirect, contempt proceedings can be either civil or criminal, depending on the

purpose of the sanction. Kilbane, 61 Ohio St.2d at 205, 400 N.E.2d 386. Civil

contempt proceedings seek to coerce the contemnor into complying with a lawful

court order; by contrast, criminal contempt proceedings seek to vindicate the court’s

authority and to punish the contemnor. Id. at 204-205. Generally, a criminal

contempt sanction consists of an unconditional punishment; however, not every

conditional sanction is civil. In re Thomas, 1st Dist. Hamilton No. C-030429, 2004-

Ohio-373, at ¶ 5; Kilbane, 61 Ohio St.2d at 205-206, 400 N.E.2d 386.

       {¶14} Although the trial court conditioned Adams’s jail sentence and fine on

whether he apologized, the purpose of the sanction was not to coerce Adams to

comply with a court order, but to punish Adams for prior conduct.          Therefore,

although the trial court stated that Adams could “purge” the contempt by

apologizing, the contempt proceedings against Adams were criminal in nature.

Criminal contempt proceedings require proof of guilt beyond a reasonable doubt. In

re Thomas, 1st Dist. Hamilton No. C-030429, 2004-Ohio-373, at ¶ 5, citing Brown v.

Executive 200, Inc., 64 Ohio St.2d 250, 253, 416 N.E.2d 610 (1980).

       {¶15} In his appeal, Adams argues that the trial court abused its discretion in

concluding, beyond a reasonable doubt, that Adams’s conduct constituted

misbehavior that obstructed justice and required immediate punishment. While we

agree that this conduct does not constitute direct criminal contempt beyond a

reasonable doubt, this court does not condone uncivil, discourteous behavior.

       {¶16} In this case, Adams did not display exemplary conduct befitting an

officer of the court; however, Adams’s conduct did not constitute an immediate

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threat to the administration of justice. See In re LoDico, 5th Dist. Stark No. 2003-

CA-00446, 2005-Ohio-172, ¶ 73, quoting State v. Conliff, 61 Ohio App.2d 185, 190,

401 N.E.2d 469 (10th Dist.1978) (determining that counsel’s “unwise, insolent and

probably personally insulting” conduct did not rise to the level of direct contempt);

see also In re Brannon, 2d Dist. Montgomery No. 19619, 2003-Ohio-4423, ¶ 98

(determining that counsel’s interruption of opposing counsel on two occasions and

request that the trial judge “hold her voice down” did not amount to contemptuous

conduct because the remarks “presented no actual or imminent threat to the

administration of justice.”); State v. Schiewe, 110 Ohio App.3d 170, 673 N.E.2d 941,

943 (6th Dist.1996).

       {¶17} Therefore, because the record does not affirmatively demonstrate that

Adams’s conduct constituted direct criminal contempt beyond a reasonable doubt,

we conclude that the trial court abused its discretion in entering its contempt order

against Adams.

                                         Conclusion

       {¶18} In conclusion, we sustain Adams’s assignment of error, and we vacate

the trial court’s order holding Adams in contempt.

                                                                      Judgment vacated.


HILDEBRANDT, P.J., DINKELACKER and FISCHER, JJ.




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




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