      [Cite as In re Deters, 2020-Ohio-3518.]
              IN THE COURT OF APPEALS
          FIRST APPELLATE DISTRICT OF OHIO
               HAMILTON COUNTY, OHIO



IN RE: ERIC DETERS                              :   APPEAL NO. C-190516
                                                    TRIAL NO. M-1900912

                                                :   O P I N I O N.




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: June 30, 2020




Schroeder, Maundrell, Barbiere & Powers, Lawrence E. Barbiere and Katherine L.
Barbiere, for Appellee Honorable Mark R. Schweikert,

Robert A. Winter, Jr., The Deters Law Firm Co. II, P.A., James F. Maus and Shawn
Crawford, for Appellant Eric Deters.
                     OHIO FIRST DISTRICT COURT OF APPEALS



C ROUSE , Judge.

       {¶1}   Defendant-appellant Eric Deters appeals the trial court’s judgment

finding him in contempt of court. For the reasons set forth below, we affirm the

judgment of the trial court.

                                  Facts and Procedure

       {¶2}   In August 2017, the Ohio Supreme Court appointed appellee retired

Judge Mark Schweikert to preside over the multitude of medical-malpractice cases

involving Abubakar Atiq Durrani, M.D. The Deters Law Firm, with whom Deters is

employed, represents a large number of the plaintiffs in the Durrani cases.

       {¶3}   On April 27, 2018, all persons involved with the Durrani litigation agreed

to a gag order which generally prohibited public discussion of the Durrani cases and

their merits. The order came about as a means of settling a prior contempt motion filed

against Deters by the defendants in the Durrani cases. In January 2019, the defendants

again sought contempt charges against Deters for alleged violations of the April 2018

order. The trial court held a hearing on the motion on March 22, 2019. At the March 22

hearing, the court instructed Deters to come into compliance with the gag order

immediately and admonished him for his “foolish antics.” Deters assured the court that

he would follow the order. As a means of again settling the contempt allegations, all

parties and their agents entered into a second gag order.

       {¶4}   The second order specifically prohibited “discussing, or posting

information about, the cases and their merits with the general public through written or

electronic media, the Internet, including social media, blogs, and similar media formats

in any form.” The order also forbade “participat[ing] in interviews with the media

and/or from making public statements generally, including public demonstrations

regarding the pending cases.” It further ordered the removal of “content posted on any



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website and/or social media platform which is in violation of this Order[.]” By its terms,

the order applied to “all parties to the pending cases, their counsel, employees, agents,

and witnesses.”

        {¶5}    Following a case-management conference on August 6, 2019, the trial

court denied the Durrani plaintiffs’ request for group trials. In response to the August 6

order, Deters planned to issue a public comment to protest Judge Schweikert’s handling

of the Durrani cases. Upon learning of the planned comment, the court immediately

issued a notice to Deters, stating: “[T]o the extent that any such activity is a violation of

this Court’s previous orders to refrain from public comment regarding [the Durrani]

proceedings, and if the acts are observed by the Court, the Hamilton County Sheriff or

other officer of this Court, this Court will treat such act as a Direct Contempt subject to

possible incarceration[.]” The following day, Deters presented his public comment on

the Hamilton County Courthouse steps. Judge J. Howard Sundermann (acting on

behalf of Judge Schweikert), members of the Hamilton County Sheriff’s Office, some of

the plaintiffs in the Durrani cases, and local news reporters were present.

        {¶6}    A week later, the trial court issued a show-cause order.         The order

instructed Deters to appear before the court on September 3, 2019, at 3:00 p.m. The

order further provided: “Said persons should bring their attorney and be prepared to

proceed. There will be no delay or continuance for counsel or otherwise.” The trial court

held the contempt hearing on September 3, 2019, at “approximately” 4:00 p.m.

Following the hearing, the court found Deters in contempt and sentenced him to 15 days

in jail. Deters filed this timely appeal.

                                      Law and Analysis

        {¶7}    In one assignment of error, Deters challenges both the procedure and

merits of the contempt finding. Deters primarily argues that he was denied due



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process during the contempt hearing. First, Deters contends that he was denied the

right to counsel when the trial court conducted the hearing without obtaining a valid

waiver of counsel. Second, he claims that he was denied the right to a public trial

and the right to call witnesses when the court held the hearing after the courthouse’s

public hours. He also challenges the sufficiency of the evidence supporting the trial

court’s finding of contempt. Judge Schweikert defends the finding of contempt by

arguing that Deters’s conduct was in direct contempt of court, and thus, not subject

to due-process requirements.

                             I. Direct or Indirect Contempt

       {¶8}    Contempt may be either direct or indirect. In re Estate of Carrier, 1st

Dist. Hamilton No. C-030249, 2003-Ohio-6919, ¶ 13. The decisive determination is

whether the misconduct occurred in the presence of the court. Where the court lacks

personal knowledge of the conduct, and has to rely on information from witnesses to

establish contempt, the conduct is indirect contempt. State v. Stegall, 1st Dist.

Hamilton Nos. C-110767, C-120112 and C-120113, 2012-Ohio-3792, ¶ 39. The judge’s

reliance on witness testimony requires the trial court to afford the alleged contemnor

a certain level of due process. Id.; In re Chambers, 2019-Ohio-3596, 142 N.E.3d

1243, ¶ 32 (1st Dist.). “These rights include reasonable notice before the hearing, the

right to reasonable time to prepare a defense, the right to counsel, the right to

subpoena and call witnesses, the right to invoke the privilege against self-

incrimination (although the contemnor may be called as a witness), the right to an

impartial judge, and proof of guilt beyond a reasonable doubt.” In re Estate of

Carrier at ¶ 15.

       {¶9}    On the other hand, where the court has personal knowledge of the

conduct, the conduct is direct contempt. In re Thomas, 1st Dist. Hamilton No. C-



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030429, 2004-Ohio-373. Direct contempt may be found and punished summarily

pursuant to R.C. 2705.01. However, “[c]ourts must closely scrutinize proceedings in

which there is a departure from due-process guarantees out of concern for

potentially ‘grave abuses.’ ” Id. at ¶ 13. Accordingly, R.C. 2705.01 limits the court’s

power to summarily punish a contemnor in two ways: (1) the acts must be known to

the court personally such that no fact-finding determination is required; and (2) the

nature or quality of the acts must be such that the orderly and effective conduct of

the court’s business requires immediate suppression and punishment. Id.

       {¶10} In this case, the trial court loosely followed the procedure for indirect

criminal contempt. The court provided Deters with written notice of the contempt

proceedings, acknowledged Deters’s right to retain counsel, allowed Deters the

opportunity to present a defense, and informed Deters about his right against self-

incrimination before he took the stand. Most importantly, the court held a hearing

and took evidence before rendering a decision. At the hearing, the court introduced

nine of its own exhibits, including a video recording of Deters’s public comment and

a screenshot of Deters’s Facebook posts. However, the court also relied on the

testimony of two sheriff’s deputies to verify Deters’s presence at the courthouse and

to authenticate the video recording of Deters’s public comment.

       {¶11} Furthermore, the nature of Deters’s acts did not require immediate

suppression and punishment.         Here, Judge Schweikert was concerned with

preserving the impartiality of the jury pool. However, Deters presented his public

comment on August 22, 2019, and the court successfully impaneled a jury five days

later on August 27, 2019. The court then issued the show-cause order on August 29,

2019, and held a contempt hearing on September 3, 2019. At that time, the jury trial

was well underway.



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       {¶12} Under these circumstances, we hold that Deters’s conduct warranted

an indirect contempt hearing with due-process protections.

                                 II.    Waiver of Counsel

       {¶13} First, Deters contends that he was denied the right to counsel when the

trial court conducted the contempt hearing without obtaining a valid waiver of

counsel.

       {¶14} A defendant may waive his right to counsel so long as the waiver is

made voluntarily, knowingly, and intelligently. State v. Nelson, 2016-Ohio-8064, 75

N.E.3d 785, ¶ 18 (1st Dist.). The record must show “that an accused was offered

counsel but intelligently and understandingly rejected the offer. Anything less is not

a waiver.” Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962).

       {¶15} A review of the record demonstrates that Deters wanted to exercise his

right to counsel. At multiple points in the record, Deters told the court, “I don’t want

to proceed today without an attorney.” Deters also stated, “I will proceed pro se only

if the Court is forcing me to go forward at this hearing today.” When the court asked

Deters to sign a written waiver of counsel, Deters stated, “Please note whatever I sign

is going to be subject to my already on the record objection.” Deters then signed the

waiver and wrote “over objection” under his signature. Before the presentation of

evidence, the court recognized that Deters would “proceed under protest” and

“signed a waiver under protest.” Accordingly, we cannot find that Deters expressly

waived his right to counsel.

       {¶16} In the absence of an express waiver, the trial court may infer a waiver

of the right to counsel when the defendant fails to obtain counsel in an attempt to

delay the hearing. State v. Fahey, 1st Dist. Hamilton No. C-880331, 1989 WL 45261,

*2 (May 3, 1989); State v. Boone, 108 Ohio App.3d 233, 670 N.E.2d 527 (1st



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Dist.1995). A defendant may not take advantage of the trial court by claiming his

right to counsel in order to frustrate or delay the judicial process. State v. Hook, 33

Ohio App.3d 101, 103, 514 N.E.2d 721 (10th Dist.1986), citing State v. Wellman, 37

Ohio St.2d 162, 309 N.E.2d 915 (1974). “Thus, when a defendant refuses to take

effective action to obtain counsel, and on the day of trial requests a continuance in

order to delay the trial, the court may, under the proper circumstances, be permitted

to infer a waiver of the right to counsel.” Id.

       {¶17} We consider Deters’s failure to obtain counsel under the totality of the

circumstances. Boone at 238 (“[T]he court must consider the total circumstances of

the case, including the background, experience, and conduct of the accused

person.”). We first note that Deters is no stranger to the law. Once a practicing

attorney, and currently a law-firm employee, Deters has both legal knowledge and

direct access to the legal community.

       {¶18} With respect to this particular case, Deters has a lengthy history of

contempt allegations. Prior to April 2018, the defendants in the Durrani cases filed a

motion for contempt against Deters for alleged violations of a previous court order.

On July 27, 2018, the court entered an agreed gag order to settle the contempt

charges. In January 2019, the defendants again filed a motion for contempt against

Deters for alleged violations of the July 2018 order. Deters appeared for a show-

cause hearing on March 22, 2019. When the court asked if he was represented by

counsel, Deters stated, “I’m going to always represent myself.” On July 31, 2019, the

court entered a second agreed gag order to again settle the contempt charges.

       {¶19} With respect to this particular contempt charge, the trial court issued a

show-cause order on August 29, 2019, which provided: “Said persons should bring

their attorney and be prepared to proceed. There will be no delay or continuance for



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counsel or otherwise.” The following day, Deters responded to the order by way of a

157-page filing. The hearing was held four days later on September 3, 2019. Deters

did not move for a continuance until the beginning of the hearing.

       {¶20} In light of the circumstances, we find that Deters, by inference, waived

his right to counsel and the trial court did not err in requiring him to proceed pro se.

                                 III.   Right to a Public Trial

       {¶21} Second, Deters argues that the trial court’s decision to hold the contempt

hearing after the courthouse’s public hours violated his right to a public trial.

       {¶22} An accused contemnor has the due-process right to a public trial. Ohio

Constitution, Article I, Section 10; State ex rel. Scripps Howard Broadcasting Co. v.

Cuyahoga Cty. Court of Common Pleas, Juvenile Div., 73 Ohio St.3d 19, 652 N.E.2d 179

(1995) (extending the right of public access to general contempt proceedings).

       {¶23} Ohio courts provide little guidance on this issue, so we turn to the federal

courts for guidance. In United States v. Anderson, 881 F.3d 568, 573 (7th Cir.2018), the

Seventh Circuit recognized that certain courtroom closures do not rise to the level of a

violation of the right to a public trial.     Whether a closure rises to the level of a

constitutional violation depends on the extent to which it implicates the values

underlying the public-trial right—to ensure a fair trial, to encourage witnesses to testify,

and to discourage perjury. Id. Thus, trivial exclusions that are limited in duration and

scope do not violate the defendant’s right to a public trial. Id. at 573-574.

       {¶24} In this case, the closure was minimal. As a preliminary matter, the

closure was inadvertent rather than deliberate. The trial court originally scheduled the

contempt hearing for 3:00 p.m. Due to a Durrani jury trial in progress, however, the

hearing commenced at “approximately” 4:00 p.m. As part of their routine security

measures, court security locked the courthouse entrance at 4:00 p.m. Nonetheless, the



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doors to the courtroom remained open, and any spectators in the building prior to 4:00

p.m. could attend the hearing in its entirety. Indeed, several members of the press and

other interested spectators were in attendance.

       {¶25} Further, it is unclear whether any effective closure existed at all in this

case. Deters makes no claim that anyone tried to attend after 4:00 p.m. but could not

get inside the courthouse. In fact, the record indicates the contrary. Sometime prior to

4:00 p.m., Deters left the courthouse.        However, upon the court’s order, Deters

reentered the building and returned to the courtroom. Presumably, court security was

present and able to allow Deters access to the courthouse after hours.

       {¶26} Under these circumstances, we cannot conclude that the partial closure of

only the courthouse entrance violated Deters’s right to a public trial.

                                IV.    Denial of Continuance

       {¶27} Third, Deters contends that the trial court’s denial of his motions for a

continuance violated his due-process right of compulsory process.

       {¶28} The denial of a continuance is within the sound discretion of the trial

judge. State v. Ungar, 67 Ohio St.2d 65, 67, 423 N.E.2d 1078 (1981). An appellate

court must not reverse the denial of a continuance absent an abuse of discretion. Id.

       {¶29} There are no mechanical tests for deciding when a denial of a

continuance violates due process. Id. Rather, “[t]he answer must be found in the

circumstances present in every case, particularly in the reasons presented to the trial

judge at the time the request is denied.” Ungar v. Sarafite, 376 U.S. 575, 589, 84

S.Ct. 841, 11 L.Ed.2d 921 (1964). On review, “we must look at the facts of each case

and the defendant must show how he was prejudiced by the denial of the

continuance before there can be a finding of prejudicial error.” State v. Broom, 40

Ohio St.3d 277, 288, 533 N.E.2d 682 (1988).



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       {¶30} During his testimony, Deters moved for a continuance to secure the

presence of “witnesses who attended the event.” However, Deters failed to proffer

the desired testimony and how it would have been material to his defense. Deters

stated only that, “I had Sarah York here. I was going to call as a witness to some

notifications. And she had to leave. I got a text message here that she had to leave to

pick up her boys.” Therefore, Deters failed to demonstrate how he was prejudiced by

the court’s denial of his continuance.

       {¶31} In closing his testimony, Deters also moved for a continuance to secure

the presence of Judge Sundermann.         Specifically, Deters stated, “I mean Judge

Sundermann is a critical witness to me. That’s another thing you could do. You can

continue this. You can continue this to allow me to have Judge Sundermann.”

Deters had testified that he spoke to Judge Sundermann prior to the public

comment.     According to Deters, he informed Judge Sundermann that he was

protesting Judge Schweikert and Chief Justice O’Connor’s refusal to grant group

trials for the plaintiffs in the Durrani litigation. Judge Sundermann allegedly told

Deters that he was allowed to criticize the courts.

       {¶32} The trial court denied Deters’s request for a continuance because it

determined that Judge Sundermann’s testimony was inconsequential to the finding

of contempt. The court was solely concerned with the fact that it had previously

informed Deters what it considered to be a violation of the order and that Deters

intentionally disregarded those instructions. Notably, Deters testified that Judge

Sundermann told him not to mention Durrani’s name. Deters then admitted that “I

think I mentioned his name one time.” This admission is corroborated by court’s

exhibit six, video footage of the public comment, which showed that Deters twice

mentioned Durrani’s name.



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       {¶33} Furthermore, Deters made no reasonable efforts to secure the presence of

Judge Sundermann. Deters did not attempt to subpoena Judge Sundermann prior to

the hearing, his reasoning being: “[W]e’re mulling over what we should do. Are you

really going to have the hearing? What’s going on? Let’s try to file the writ.” Deters

also waited until after the presentation of the court’s evidence, and towards the end

of his testimony (which spanned 42 pages of the transcript), to suggest a continuance

to secure Judge Sundermann’s presence.

       {¶34} Under these circumstances, the court did not abuse its discretion in

denying Deters’s motions for a continuance.

                            V.       Sufficiency of the Evidence

       {¶35} Fourth, Deters challenges the sufficiency of the evidence supporting the

trial court’s finding of contempt.

       {¶36} As a preliminary matter, Deters contends that insufficient evidence

supports his conviction because the court’s exhibits were never formally admitted

into evidence. The exhibits include a transcript of the March 22 hearing, the second

gag order, the August 22 notice, a video recording from the courthouse security

camera, a news article reporting on Deters’s public comment, prior court orders

sealing the Durrani verdicts, and a screenshot of Deters’s Facebook page listing the

redacted verdicts.

       {¶37} Several courts have held that exhibits are deemed admitted where they

“were treated below, without objection, as if they were admitted into evidence.” United

States v. Barrett, 111 F.3d 947, 951 (D.C.Cir.1997).            See, e.g., United States v.

Stapleton, 494    F.2d    1269,      1270   (9th    Cir.1974)   (seven exhibits marked   for

identification    but    not formally       received into evidence deemed admitted where

“[t]here was extensive testimony about each of them,” “both parties, and the judge,



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acted as if they were in evidence,” and “defense counsel raised no question about

the exhibits not being in evidence”); State v. Brown, 307 Kan. 641, 413 P.3d 783

(2018) (eight exhibits marked for identification but not formally received into

evidence regarded as admitted where the state’s witness provided extensive

testimony regarding the exhibits while they were displayed to the jury, the judge and

both counsel considered them to be admitted, and the defense made no issue of the

exhibits until his appeal).

        {¶38} Here, the court marked the exhibits for identification and introduced

them.    The court’s witnesses provided testimony regarding at least two of the

exhibits. Deters did not object at the hearing. In fact, Deters cross-examined the

court’s witnesses as if the exhibits were admitted. On appeal, Deters does not

suggest that the exhibits were inadmissible or should otherwise not have been

admitted into evidence. Therefore, the court’s exhibits are deemed admitted.

        {¶39} Having concluded that the court’s exhibits were received into evidence,

we now turn to the sufficiency of the evidence. At the contempt hearing and on

appeal, Deters raised issue with the contents of the gag order and the court’s broad

interpretation of the order. However, Deters never appealed the gag order. In fact,

Deters agreed to follow the order as the court interpreted it to settle prior contempt

allegations. Therefore, the constitutionality of the gag order is not before us. Instead,

we are asked to decide whether, when viewing the case “in the light most favorable to the

trial court[,] * * * the facts would convince the average person beyond a reasonable

doubt that [Deters] intend[ed] to violate the court’s order[.]” Rohr Corp. v. Wendt &

Sons, Inc., 1st Dist. Hamilton No. C-961051, 1997 WL 770161 (Dec. 12, 1997).

        {¶40} By its written terms, the gag order prohibited Deters “from making public

statements generally, including public demonstrations regarding the pending cases.” At



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the March 22 hearing, the court informed Deters of its interpretation of the order—that

“any comment that was reasonably expected to draw attention to [the Durrani litigation]

and that might impact on the jury pool would be a violation.” At the contempt hearing,

Deters acknowledged the court’s belief that “anything that brings light upon the Durrani

litigation * * * is a violation of that gag order.” Nonetheless, Deters admitted that he

wanted to bring public attention to the plaintiffs of the Durrani trials. In fact, Deters

invited local news channels to cover the public comment where he was “protesting with

great vigor Judge Mark Schweikert and Chief Justice O’Connor’s failure, failure,

disgraceful to not give these Durrani victims their trials[.]”

        {¶41} Deters’s admission is supported by court’s exhibit six, live-stream video

footage of the public comment. During the comment, Deters detailed the procedures

implemented for “these cases” and “these plaintiffs.” Deters also stated: “These cases

have great, great merit.” Notably, Deters twice mentioned Durrani’s name and named

all of the Durrani plaintiffs in attendance at the comment. As reflected by court’s exhibit

seven, a local news channel subsequently reported on Durrani and the Durrani

litigation.

        {¶42} The gag order also required the removal of “content posted on any

website and/or social media platform” which disseminated information about the

Durrani cases and their merits. At the contempt hearing, Deters testified, “I posted on

social media Deters Law Firm verdicts. I took out the name of every verdict. It doesn’t

mention Dr. Durrani at all. And I put the amounts on those verdicts totaling $89 million

in 14 months.” Court’s exhibit nine, a screenshot of Deters’s Facebook page, supports

Deters’s admission that he posted a chart of redacted Durrani verdicts.




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       {¶43} When viewing this evidence in the light most favorable to the trial court,

the facts could convince the average person beyond a reasonable doubt that Deters

intended to violate the court’s order.

                                         Summary

       {¶44} For the foregoing reasons, Deters’s assignment of error is overruled and

the judgment of the trial court is affirmed.

                                                                      Judgment affirmed.


M OCK , P.J., and W INKLER , J., concur.


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




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