[Cite as State v. Tinley, 2018-Ohio-2239.]


STATE OF OHIO                      )                    IN THE COURT OF APPEALS
                                   )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                   )

STATE OF OHIO                                           C.A. No.   17CA0062-M

        Appellee

        v.                                              APPEAL FROM JUDGMENT
                                                        ENTERED IN THE
MARI BETH TINLEY                                        WADSWORTH MUNICIPAL COURT
                                                        COUNTY OF MEDINA, OHIO
        Appellant                                       CASE No.   17CRB0254

                                  DECISION AND JOURNAL ENTRY

Dated: June 11, 2018



        CALLAHAN, Judge.

        {¶1}     Defendant-Appellant, Mari Beth Tinley, appeals from her conviction in the

Wadsworth Municipal Court. This Court affirms.

                                                   I.

        {¶2}     As a result of an incident that occurred on March 25, 2017, Ms. Tinley was

charged with one count of domestic violence. Her trial date was postponed on two occasions and

ultimately set for July 10, 2017. Though she attempted to demand a jury trial a few days before

her scheduled trial, the court denied her request as untimely. An acting judge then presided over

her trial due to the unavailability of the original judge.

        {¶3}     The acting judge found Ms. Tinley guilty and scheduled the matter for a

presentence interview. Ms. Tinley then filed a motion for new trial, and the original trial judge

denied her motion.        The court sentenced Ms. Tinley to suspended jail time, one year of

probation, and a fine.
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       {¶4}    Ms. Tinley now appeals from her conviction and raises seven assignments of error

for review. For ease of analysis, this Court consolidates several of her assignments of error.

                                                II.

                               ASSIGNMENT OF ERROR NO. 1

       THE COURT ERRED BY NOT EITHER CONTINUING THE TRIAL OR
       PRECLUDING THE STATE’S WITNESSES FROM TESTIFYING DUE TO
       THEIR FAILURE TO COMPLY WITH CRIMINAL RULE 16.

                               ASSIGNMENT OF ERROR NO. 2

       THE COURT ERRED BY ALLOWING THE OFFICER TO TESTIFY TO
       HEARSAY.

                               ASSIGNMENT OF ERROR NO. 3

       THE PHOTOS WERE NOT PROPERLY DISCLOSED DURING DISCOVERY
       AND SHOULD NOT HAVE BEEN ADMITTED.

                               ASSIGNMENT OF ERROR NO. 4

       THE CONVICTION FOR DOMESTIC VIOLENCE WAS NOT SUPPORTED
       BY SUFFICIENT EVIDENCE AND WAS AGAINST THE WEIGHT OF THE
       EVIDENCE.

       {¶5}    In the foregoing assignments of error, Ms. Tinley argues that the court committed

reversible error during the course of the trial and that her conviction is based on insufficient

evidence and is against the manifest weight of the evidence. Because the record does not contain

a transcript of the proceedings, this Court has no choice but to presume regularity and reject each

of her assignments of error.

       {¶6}    App.R. 9(B)(1) provides that “it is the obligation of the appellant to ensure that

the proceedings the appellant considers necessary for inclusion in the record, however those

proceedings were recorded, are transcribed in a form that meets the specifications of App.R.

9(B)(6).”   (Emphasis added.)     See also Loc.R. 5(A).      The transcription of any necessary

proceedings is, therefore, required, and an appellant may not rely solely on an audio-recording
                                                 3


for purposes of his or her appeal. See App.R. 9(B)(1) and App.R. 9(B)(6) (outlining various

formatting requirements for bound volumes of transcripts). But see App.R. 9(B)(1) (providing

for an exception in expedited abortion-related appeals from juvenile court). “‘When an appellant

fails to provide a complete and proper transcript, a reviewing court will presume the regularity of

the proceedings in the trial court and affirm.’”       State v. Lothes, 9th Dist. Medina Nos.

11CA0015-M, 11CA0016-M, 11CA0017-M, 2012-Ohio-1388, ¶ 7, quoting State v. Campbell,

9th Dist. Medina No. 10CA0120-M, 2011-Ohio-5433, ¶ 5.

       {¶7}    The record in this matter does not contain any transcripts.         Following Ms.

Tinley’s trial, the court recorder and secretary of the Wadsworth Municipal Court certified that

the proceedings had been electronically recorded. Ms. Tinley did not ask the court to appoint a

court reporter, but instead filed a praecipe for transcripts directly with the court. Subsequently,

the court recorder and secretary filed an affidavit in which she averred that she was the official

court reporter for the court. She further averred that the Wadsworth Municipal Court had “filed

a complete transcript of all computer entries and proceedings” with this Court of Appeals and

that “the same was a true and accurate record of the proceedings * * *.” An audio-recording of

the trial was included along with her affidavit. Yet, the audio-recording was never transcribed,

and Ms. Tinley took no further action to secure a transcript.

       {¶8}    Upon review, this Court cannot resolve Ms. Tinley’s first, second, third, or fourth

assignments of error on their merits in the absence of a trial transcript. The audio-recording

contained in the record does not comport with App.R. 9 and is not a substitute for a proper

transcript. See Lothes at ¶ 6-7; Campbell at ¶ 6-7. Because Ms. Tinley failed to ensure that these

proceedings were transcribed in accordance with App.R. 9, this Court has no choice but to

“‘presume the regularity of the proceedings in the trial court and affirm.’” Lothes at ¶ 7, quoting
                                                 4


Campbell at ¶ 5. Consequently, her first, second, third, and fourth assignments of error are

overruled.

                              ASSIGNMENT OF ERROR NO. 5

       THE DEFENDANT’S RIGHT TO A SPEEDY TRIAL WAS VIOLATED.

       {¶9}    In her fifth assignment of error, Ms. Tinley argues that her statutory speedy trial

rights were violated. This Court rejects her argument.

       {¶10} To preserve a statutory speedy trial argument for appeal, a defendant must invoke

her speedy trial rights “at or prior to the commencement of trial.” R.C. 2945.73(B). Accord

State v. Griffin, 9th Dist. Medina No. 2440-M, 1995 Ohio App. LEXIS 5613, *3 (Dec. 20, 1995).

A defendant who fails to assert her speedy trial rights in a timely manner forfeits those rights and

is limited to a claim of plain error on appeal. See State v. Carter, 9th Dist. Summit No. 27717,

2017-Ohio-8847, ¶ 20; Griffin at *3. Even so, “[t]his Court has repeatedly noted that it will not

sua sponte fashion an unraised plain error argument and then address it.” State v. Jacobs, 9th

Dist. Summit No. 27545, 2015-Ohio-4353, ¶ 33.

       {¶11} The record reflects that, prior to trial, Ms. Tinley never filed a motion to dismiss

or discharge this matter based on a violation of her speedy trial rights. Though she claims that

she raised a speedy trial argument at trial, this Court cannot confirm that she did so due to the

absence of a trial transcript. See State v. Suttles, 9th Dist. Summit No. 28748, 2018-Ohio-1607,

¶ 5 (presuming regularity where appellant failed to provide transcript). Absent any indication in

the record that Ms. Tinley invoked her speedy trial rights “at or prior to the commencement of

trial,” R.C. 2945.73(B), this Court must conclude that she forfeited those rights and is now

limited to a claim of plain error. See Carter at ¶ 20. Ms. Tinley, however, has not argued plain
                                                  5


error on appeal, and this Court will not construct an argument on her behalf. See Jacobs at ¶ 33.

Accordingly, her fifth assignment of error is overruled.

                               ASSIGNMENT OF ERROR NO. 6

       IT WAS AN ABUSE OF THE TRIAL COURT’S DISCRETION TO NOT
       CONSIDER THE DEFENDANT’S MOTION FOR A NEW TRIAL.

       {¶12} In her sixth assignment of error, Ms. Tinley argues that the trial court abused its

discretion when it failed to consider several aspects of her motion for a new trial. This Court

disagrees.

       {¶13} Crim.R. 33(A) allows a defendant to move for a new trial when her substantial

rights have been materially affected. A trial court’s ultimate decision to grant or deny a motion

for new trial is one this Court reviews for an abuse of discretion. State v. McQuistan, 9th Dist.

Medina No. 17CA0007-M, 2018-Ohio-539, ¶ 43. An abuse of discretion indicates that the trial

court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5

Ohio St.3d 217, 219 (1983).

       {¶14} Due to the unavailability of the original trial judge in this matter, an acting judge

presided over Ms. Tinley’s trial. The original trial judge then received Ms. Tinley’s motion for a

new trial. In ruling on the motion, the original trial judge indicated that he was unwilling to

“second guess” the acting judge’s evidentiary rulings or decision to deny a continuance of the

trial date. According to Ms. Tinley, the original trial judge’s refusal to “second guess” those

rulings amounted to “an absolute refusal to consider the merits of [her] motion * * *.” She

argues that it was unreasonable for the original trial judge to deny her motion based on “some

sense of judicial loyalty to [the] acting judge * * *.”

       {¶15} Ms. Tinley has made no attempt to explain how she was prejudiced by the court’s

handling of her motion.       See Crim.R. 52(A).      She has not explained why the underlying
                                                 6


arguments she advanced in her motion were meritorious. See App.R. 16(A)(7). Moreover,

because she has not provided this Court with a transcript, she also has not ensured that this Court

possesses an adequate record for review. See State v. Brooks, 9th Dist. Lorain No. 16CA010958,

2017-Ohio-5620, ¶ 6, quoting State v. Keene, 9th Dist. Lorain No. 06CA008880, 2006-Ohio-

6676, ¶ 22 (“‘[T]he burden of ensuring that the record on appeal is complete is placed on

appellant.”’). For the foregoing reasons, this Court rejects her argument that the trial court erred

in its ruling on her motion for a new trial. Ms. Tinley’s sixth assignment of error is overruled.

                               ASSIGNMENT OF ERROR NO. 7

          THE DEFENDANT’S RIGHT TO DUE PROCESS BY THE CASE BEING
          HEARD BY AN ACTING JUDGE INSTEAD OF A JURY. (Sic.)

          {¶16} In her seventh assignment of error, Ms. Tinley argues that her due process rights

were violated because, after an acting judge was appointed to preside over her trial, she was

denied the opportunity to demand a jury. For the following reasons, this Court rejects her

argument.

          {¶17} Pursuant to R.C. 1901.121(A)(2)(a), a municipal judge may appoint an attorney to

act in his or her stead if the municipal judge is the only one serving the municipality and he or

she must be temporarily absent. Ms. Tinley does not dispute this statutory authority or otherwise

argue that the original trial judge lacked the authority to appoint an acting judge. Instead, she

argues that the timing of the appointment violated her due process rights because it occurred too

close to her trial, such that she did not have the opportunity to make a timely demand for a jury

trial.1


1
 Although Ms. Tinley repeatedly references a 14-day window as the timeframe within which she
had to request a jury, the 14-day timeframe only applies in civil cases. See Civ.R. 38(B). In
petty offense cases, a defendant must file a jury demand not less than ten days before trial. See
Crim.R. 23(A).
                                                 7


       {¶18} The record is devoid of any journal entry or docket notation evidencing the formal

appointment of an acting judge in this matter. Consequently, it is not clear from the record when

the original trial judge actually appointed the acting judge who presided over Ms. Tinley’s trial.

The record reflects that Ms. Tinley filed a jury demand five days before her scheduled trial date,

and, the following day, a visiting judge (i.e., not the original judge or the acting judge) signed an

entry denying her demand as untimely. Four days later, the acting judge issued a judgment

entry, finding Ms. Tinley guilty and referring the matter for a presentence interview.           No

motions, entries, or notations were filed or entered in the four days between the visiting judge’s

denial of Ms. Tinley’s written jury demand and the acting judge’s judgment entry.

       {¶19} According to Ms. Tinley, she did not receive any advance notice that her trial

would be heard by an acting judge. She alleges that she “specifically renewed [her] jury demand

at the start of the trial” to preserve this issue for review. As repeatedly noted, however, the

record does not contain a transcript of the proceedings, so this Court cannot determine whether

Ms. Tinley raised this issue at the start of trial. Although she filed a jury demand five days

before her scheduled trial, she never indicated that she did so due to the appointment of an acting

judge. She simply filed a demand for a jury, and the visiting judge denied it as untimely. Based

on Ms. Tinley’s representation that she did not receive any advance notice of the appointment of

the acting judge, it does not appear that her written jury demand bore any relation to that

appointment.

       {¶20} Upon review, Ms. Tinley has not demonstrated that she preserved this issue for

appeal by timely raising it in the lower court. See State v. Fitzgerald, 9th Dist. Summit No.

23072, 2007-Ohio-701, ¶ 8 (“[A] forfeiture occurs where a party fails to assert a right or make an

objection before the trial court in a timely fashion.”). Without a transcript, this Court cannot
                                                 8


confirm that she renewed her jury demand or otherwise raised a due process argument on that

basis at trial. Further, even assuming the lack of a transcript would not foreclose her from

prevailing on a claim of plain error, she has not argued plain error on appeal. See Jacobs, 2015-

Ohio-4353, at ¶ 33. Accordingly, this Court has no choice but to “‘presume the regularity of the

proceedings in the trial court and affirm.’” Lothes, 2012-Ohio-1388, at ¶ 7, quoting Campbell,

2011-Ohio-5433, at ¶ 5. Ms. Tinley’s seventh assignment of error is overruled.

                                                III.

       {¶21} Ms. Tinley’s assignments of error are overruled. The judgment of the Wadsworth

Municipal Court is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Wadsworth

Municipal Court, County of Medina, State of Ohio, to carry this judgment into execution. A

certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
                                           9


Costs taxed to Appellant.




                                               LYNNE S. CALLAHAN
                                               FOR THE COURT



SCHAFER, P. J.
CARR, J.
CONCUR.


APPEARANCES:

SEAN C. BUCHANAN, Attorney at Law, for Appellant.

THOMAS J. MORRIS, Assistant Director of Law, for Appellee.
