[Cite as State v. McDew, 2011-Ohio-1196.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT




STATE OF OHIO                               :      JUDGES:
                                            :      Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                  :      Hon. John W. Wise, J.
                                            :      Hon. Julie A. Edwards, J.
-vs-                                        :
                                            :
MICHELLE MCDEW                              :      Case No. 2010CA0270
                                            :
        Defendant-Appellant                 :      OPINION




CHARACTER OF PROCEEDING:                        Appeal from the Canton Municipal Court,
                                                Case No. 2010CRB03716



JUDGMENT:                                       Affirmed




DATE OF JUDGMENT ENTRY:                         March 14, 2011




APPEARANCES:

For Plaintiff-Appellee                          For Defendant-Appellant

BRANDEN L. PAXOS                                E. KELLY MIHOCIK
218 Cleveland Avenue, SW                        250 East Broad
P.O. Box 24218                                  Suite 1400
Canton, OH 44701-4218                           Columbus, OH 43215
Stark County, Case No. 2010CA0270                                                  2

Farmer, P.J.

      {¶1}     On August 24, 2010, appellant, Michelle McDew, appeared in the Canton

Municipal Court for arraignment on a charge of failure to appear for a show cause

hearing. Following her exchange with the judge, appellant shouted profanities and was

uncooperative.     The judge immediately held appellant in contempt of court and

sentenced her to thirty days in jail. The sentence was journalized via judgment entry

filed August 24, 2010. On September 8, 2010, the remainder of appellant's sentence

was suspended on the condition of two years of good behavior.

      {¶2}     Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                           I

      {¶3}     "THE TRIAL COURT ERRED WHEN IT HELD MS. MCDEW IN

CRIMINAL CONTEMPT OF COURT WHEN SHE DID NOT ACTUALLY INTERFERE

WITH THE ADMINISTRATION OF JUSTICE.                   THERE WAS INSUFFICIENT

EVIDENCE, AS A MATTER OF LAW, TO HOLD MS. MCDEW IN CONTEMPT OF

COURT.       FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION; SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION; R.C.

2705.01; STATE V. DRAKE (1991), 73 OHIO APP.3D 640, 598 N.E.2D 115."

                                           II

      {¶4}     "THE THIRTY-DAY SENTENCE IMPOSED BY THE TRIAL COURT WAS

NOT PROPORTIONAL TO MCDEW'S ACT, WHICH THE COURT ERRONEOUSLY

FOUND TO BE CONTEMPTUOUS.               MS. MCDEW'S RIGHT TO BE FREE FROM

CRUEL AND UNUSUAL PUNISHMENT WAS VIOLATED WHEN THE TRIAL COURT
Stark County, Case No. 2010CA0270                                                        3


IMPOSED THAT SENTENCE. EIGHTH AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION; SECTION 9, ARTICLE I, OHIO CONSTITUTION."

                                              I

       {¶5}   Appellant claims there was insufficient evidence as a matter of law for the

trial court to find her guilty of direct criminal contempt of court as she did not actually

interfere with the administration of justice. We disagree.

       {¶6}   Pursuant to R.C. 2705.01, "[a] court, or judge at chambers, may

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." As explained by our brethren from

the Tenth District in State v. Conliff (1978), 61 Ohio App.2d, 185, 189:

       {¶7}   "Because of the summary nature of a direct contempt conviction, the court

must be careful to guard against confusing actions or words which are contemptuous to

the judge's personal feelings or sensibilities and actions or words which constitute

punishable, criminal contempt of a summary nature because of posing an actual or

imminent threat to the administration of justice."

       {¶8}   "The power to determine the kind and character of conduct which

constitutes contempt of court rests in the sound discretion of the court and it has the

power to impose a penalty reasonably commensurate with the gravity of the offense."

Id. In order to find an abuse of discretion, we must determine the trial court's decision

was unreasonable, arbitrary or unconscionable and not merely an error of law or

judgment. Blakemore v. Blakemore (1983) 5 Ohio St.3d 217.

       {¶9}   The encounter between the judge and appellant was brief.           Appellant

argues her comments, although obnoxious and immature, did not amount to a
Stark County, Case No. 2010CA0270                                                     4


disruption. However, the record indicates her outburst occurred as another case was

called and the trial court was attempting to conduct judicial proceedings:

      {¶10} "BY THE PROSECUTOR (calling the next case): James Perry.

      {¶11} "BY MS. McDEW: Fuck this! It's bullshit!

      {¶12} "BY THE COURT: Alright. That just earned you...

      {¶13} "BY MS. McDEW: This is...

      {¶14} "BY THE COURT: ...a thirty day vacation...

      {¶15} "BY MS. McDEW: (Yelling) Sir!

      {¶16} "BY THE COURT: ...in the Stark County jail, and if you...

      {¶17} "BY MS. McDEW: (Yelling) Sir, I'm in college!

      {¶18} "BY THE COURT: ...say anymore, we're gonna go up to…

      {¶19} "BY MS. McDEW: (Yelling) I am in college!            I am in college!   I am

supposed to be in school…

      {¶20} "BY THE COURT: Okay. That's enough.

      {¶21} "(Ms. McDew continues yelling, but it is unintelligible.)

      {¶22} "(Unintelligible commands by the jailer)

      {¶23} "BY THE COURT: I told you to stop. You are…

      {¶24} "BY MS. McDEW: But…

      {¶25} "BY THE JAILER: NOW!

      {¶26} "BY THE COURT: Madam, you are in contempt of court.

      {¶27} "BY MS. McDEW: I am in college.

      {¶28} "BY THE JAILER: NOW!

      {¶29} "BY THE COURT: You are in contempt of court.
Stark County, Case No. 2010CA0270                                                          5


       {¶30} "(Ms. McDew continues yelling unintelligibly as jailers are escorting

her from the bullpen)." T. at 2-3.

       {¶31} By its very nature, direct contempt of court is a very subjective

determination. The magnitude of any given situation is never adequately portrayed by

the written transcript. Because of its subjective nature and the fact that the actual

dynamics of the situation are best viewed by the trial court, it is difficult to second-guess

the trial court.

       {¶32} The courtroom dynamics are judged by the totality of the circumstances.

The ultimate responsibility for control of the courtroom lies with the judge. Here, the

incident occurred in the midst of an arraignment docket where other defendants,

attorneys, and the general public were present.          The issues of courtroom control,

demeanor, and orderly proceedings are of upmost importance.               There was more

occurring in the courtroom than just appellant's case.

       {¶33} Upon review, we find there was sufficient evidence that appellant was

disruptive to the arraignment process and her outburst and failure to cooperate with the

jailer occurred during another's proceedings, thereby obstructing the administration of

justice. The trial court did not abuse its discretion in finding appellant in direct criminal

contempt of court.

       {¶34} Assignment of Error I is denied.

                                             II

       {¶35} Appellant claims her thirty day sentence was disproportionate to the

severity of the contempt. We disagree.
Stark County, Case No. 2010CA0270                                                        6

       {¶36} In State v. Kilbane (1960), 61 Ohio St.2d 201, syllabus, the Supreme

Court of Ohio held the following:

       {¶37} "1. Courts, in their sound discretion, have the power to determine the kind

and character of conduct which constitutes direct contempt of court.          In imposing

punishment for acts of direct contempt, courts are not limited by legislation but have the

power to impose a penalty reasonably commensurate with the gravity of the offense.

(State v. Local Union 5760, 172 Ohio St. 75, 173 N.E.2d 331, paragraph four of the

syllabus, approved and followed.)

       {¶38} "2. The primary purpose of a criminal contempt sanction must be to

vindicate the authority of a court and it, therefore, must be determinate. Conditions,

however, may be attached to such a determinate sentence which allow for earlier

termination of the sentence."

       {¶39} When a direct contempt is involved, "the limits placed on contempt

sanctions by R.C. Chapter 2705 are inapplicable." Kilbane, at 204. "Although R.C.

2705.05(A) does not apply to limit the punishment a court may impose for

contemptuous conduct, this is not to say that the court has no limits on its authority to

punish contemptuous conduct.         The court's inherent power to punish contempt

necessarily implies that it cannot do so arbitrarily or unreasonably, but in proportion to

the contemptuous conduct." State v. King, Cuyahoga App. No. 80958, 2002-Ohio-7228,

¶10.

       {¶40} As discussed supra, appellant in this case was disruptive, uncooperative,

and obstructed the administration of justice. The trial court sentenced appellant to thirty
Stark County, Case No. 2010CA0270                                                     7


days in jail. The sentence was later reduced from thirty days to sixteen days and good

behavior, and a fine was not imposed.

       {¶41} Upon review, we find the sentence imposed by the trial court is well within

its sentencing authority and is not disproportionate to the conduct.

       {¶42} Assignment of Error II is denied.

       {¶43} The judgment of the Canton Municipal Court of Stark County, Ohio is

hereby affirmed.

By Farmer, P.J.

Wise, J. and

Edwards, J. concur.




                                             _s/ Sheila G. Farmer__________________




                                             _s/ John W. Wise_____________________




                                             s/ Julie A. Edwards___________________

                                                               JUDGES

SGF/sg 222
Stark County, Case No. 2010CA0270                                               8


             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT



STATE OF OHIO                           :
                                        :
       Plaintiff-Appellee               :
                                        :
-vs-                                    :         JUDGMENT ENTRY
                                        :
MICHELLE MCDEW                          :
                                        :
       Defendant-Appellant              :         CASE NO. 2010CA0270




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Canton Municipal Court of Stark County, Ohio is affirmed. Costs to

appellant.




                                         _s/ Sheila G. Farmer__________________




                                        _s/ John W. Wise_____________________




                                        s/ Julie A. Edwards___________________

                                                        JUDGES
