[Cite as State v. Horvath, 2015-Ohio-4729.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               SENECA COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                            CASE NO. 13-15-10

        v.

DANIEL E. HORVATH,                                     OPINION

        DEFENDANT-APPELLANT.




                     Appeal from Tiffin-Fostoria Municipal Court
                            Trial Court No. CRB1401162

                       Judgment Reversed and Cause Remanded

                          Date of Decision: November 16, 2015




APPEARANCES:

        Michael D. Weikle for Appellant

        Richard H. Palau for Appellee
Case No. 13-15-10


ROGERS, P.J.

         {¶1} Defendant-Appellant, Daniel Horvath, appeals the judgment of the

Tiffin-Fostoria Municipal Court convicting him of one count of theft. On appeal,

Horvath argues that the trial court erred by: (1) finding him guilty in absence of an

explanation of circumstances as required under R.C. 2937.07; (2) violating his

right to a speedy trial; and (3) denying his motion to suppress alleged hearsay

testimony. For the reasons set forth herein, we reverse the judgment of the trial

court.

         {¶2} On September 9, 2014, a criminal complaint was filed against Horvath

alleging one count of theft in violation of R.C. 2913.02(A)(1), a misdemeanor of

the first degree. On September 12, 2014, Horvath entered a plea of not guilty.

         {¶3} On October 20, 2014, Horvath moved for an extension of time to file

pre-trial motions, and a hearing was held on October 31, 2014. At the hearing, the

trial court stated that it would grant Horvath’s request so long as he waived his

right to a speedy trial. Horvath complied, and his request for an extension was

granted.

         {¶4} On November 10, 2014, Horvath moved to suppress, inter alia, alleged

hearsay statements and photographic evidence. A hearing was held on January 19,

2015, where the following testimony was heard:




                                         -2-
Case No. 13-15-10


      {¶5} Officer Douglas Skornicka of the Tiffin Police Department testified

that on June 30, 2014 he spoke with Alicia Burnat regarding a complaint that her

wallet had been stolen. Officer Skornicka stated that on June 28, 2014, Ms.

Burnat visited a local Wal-Mart in Tiffin, Ohio to purchase supplies for a camping

trip. After paying for the supplies, Ms. Burnat left her shopping cart near the

store’s entrance. Unbeknownst to Ms. Burnat, her wallet, containing her driver’s

license and $180.00, remained in the cart’s upper basket. According to Officer

Skornicka, Ms. Burnat was told by a Wal-Mart employee that a man, later

identified as Horvath, had used the shopping cart immediately after her. Officer

Skornicka testified that he reviewed Wal-Mart’s security footage and obtained

three still photographs depicting Horvath entering the store, retrieving a shopping

cart, and leaving the premise. Officer Skornicka added that Wal-Mart had

inadvertently destroyed the security footage prior to issuing a copy to the Tiffin

Police Department. Officer Skornicka further testified that he spoke with Horvath

regarding the alleged theft and that Horvath had admitted to leaving the premise

with Ms. Burnat’s wallet.

      {¶6} At the suppression hearing, Horvath argued, inter alia, that all

testimony and photographic evidence concerning the contents of the unavailable

security footage was hearsay and subject to exclusion under the Ohio Rules of




                                        -3-
Case No. 13-15-10


Evidence. Upon the conclusion of the testimony, the trial court denied Horvath’s

motion.

       {¶7} In the interim, the State moved to amend the complaint. Specifically,

the State sought to clarify the extent of the alleged stolen property. By way of

Entry dated February 9, 2015, the trial court granted the State’s motion, noting that

the charge of theft was limited to a “dark blue butterfly wallet.” (Docket No. 58).

       {¶8} On February 23, 2015, Horvath moved to dismiss the case on speedy

trial grounds. Specifically, Horvath argued that his earlier waiver was invalid

because the trial court improperly required a waiver of speedy trial as a condition

precedent to granting his request for an extension of time. At a hearing held later

that day, the trial court denied Horvath’s motion.

       {¶9} Immediately thereafter, Horvath entered a plea of no contest. After

accepting Horvath’s plea, the trial court stated that “[b]ased on an earlier review of

the complaint and [Horvath’s] plea of no contest there will be a finding of guilty.”

Feb. 23 Hrg., p. 8. The case proceeded immediately to sentencing where the trial

court imposed a 30-day suspended jail sentence, a $250.00 fine, and a one year

period of community control. The trial court furthered ordered Horvath to pay

restitution to Ms. Burnat in the amount of $205.00.

       {¶10} It is from this judgment that Horvath appeals, presenting the

following assignments of error for our review.


                                         -4-
Case No. 13-15-10


                    Assignment of Error No. I

      THE TRIAL COURT COMMITTED REVERSIBLE ERROR
      IN FINDING THE DEFENDANT GUILTY AFTER
      DEFENDANT’S VERBAL ENTRY OF A PLEA OF NO
      CONTEST WITHOUT FIRST HAVING THE STATE READ
      INTO THE RECORD AN EXPLANATION OF THE FACTS
      AND CIRCUMSTANCES SUPPORTING ALL OF THE
      ESSENTIAL ELEMENTS OF THE OFFENSE CHARGED AS
      REQUIRED UNDER OHIO REVISED CODE SECTION
      2937.07.

                      Assignment of Error No. II

      THE TRIAL COURT COMMITTED REVERSIBLE ERROR
      DENYING THE DEFENDANT’S SPEEDY TRIAL MOTION
      WHEN THE DEFENDANT’S WAIVER OF HIS SPEEDY
      TRIAL WAS INVALID; AND THE RECORD IS NOT CLEAR
      AS TO THE TRIAL COURT’S BASIS FOR DENYING THE
      MOTION BECAUSE NO FINDINGS WERE MADE BY THE
      TRIAL COURT AND THE STATE FAILED TO MEET ITS
      BURDEN TO ESTABLISH SUFFICIENT SPEEDY TRIAL
      DAYS HAD BEEN TOLLED TO BRING THE HEARING
      WITHIN THE SPEEDY TRIAL DATE AFTER THE
      DEFENDANT PRESENTED A PRIMA FACIE CASE FOR
      DISCHARGE.

                      Assignment of Error No. III

      THE TRIAL COURT COMMITTED REVERSIBLE ERROR
      WHEN IT DENIED DEFENDANT’S PRE-TRIAL MOTION
      TO SUPPRESS ALL TESTIMONY REGARDING THE
      CONTENTS OF A JUNE 28, 2014 WAL-MART
      SURVEILLANCE VIDEO RECORDING WHEN THE STATE
      FAILED TO OBTAIN A COPY OF THE VIDEO BEFORE IT
      WAS DESTROYED (RECORDED OVER) BY WAL-MART IN
      THE NORMAL COURSE OF ITS VIDEO SURVEILLANCE
      OPERATIONS AND THERE WAS NO EYEWITNESS TO
      THE CRIME CHARGED OR THE EVENTS RECORDED.


                               -5-
Case No. 13-15-10


                               Assignment of Error No. I

       {¶11} In his first assignment of error, Horvath argues that the trial court

erred in making a finding of guilt in absence of an explanation of circumstances

pursuant to R.C. 2937.07. We agree.

       {¶12} R.C. 2937.07 provides, in pertinent part, “A plea to a misdemeanor

offense of ‘no contest’ or words of similar import shall constitute an admission of

the truth of the facts alleged in the complaint and that the judge or magistrate may

make a finding of guilty or not guilty from the explanation of the circumstances of

the offense.” An explanation of circumstances is found where the record includes

a statement of the facts sufficient to support all of the essential elements of the

offense. State v. Provino, 175 Ohio App.3d 283, 2007-Ohio-6974, ¶ 5 (3d Dist.);

City of Cuyahoga Falls v. Bowers, 9 Ohio St.3d 148 (1984). “This rule prevents

the trial court from finding offenders guilty in a ‘perfunctory fashion.’ ” Provino

at ¶ 5. When a trial court makes a finding of guilt in the absence of an explanation

of circumstances, the plea must be vacated. Bowers at 151.

       {¶13} Here, Horvath was charged with one count of theft in violation of

R.C. 2913.02(A)(1), which provides that “[n]o person, with purpose to deprive the

owner of property or services, shall knowingly obtain or exert control over either

the property or services * * * [w]ithout the consent of the owner or person

authorized to give consent.”


                                          -6-
Case No. 13-15-10


       {¶14} The amended complaint set forth the following facts:

       [Horvath] at 2801 W. Sr. 18, Tiffin, Ohio on or about 6/28/2014 did,
       with purpose to deprive Alicia Burnat, the owner, of her property,
       did knowingly obtain and exert control over said property to wit: a
       dark blue butterfly wallet, without the consent of Alicia Burnat, the
       owner, or person authorized to give consent.

       On 6/30/14 the Tiffin P.D. was advised of a theft complaint which
       occurred on 6/28/14 at Walmart located at 2801 W. Sr. 18, Seneca
       County, Ohio. The victim, Alicia Burnat, had already consulted with
       Walmart management and the security footage was reviewed. [Ms.
       Burnat] stated that after making a purchase at the register, she
       pushed her cart and left it with other shopping carts between the
       entrance doors. In doing so, she left her wallet behind in the
       shopping cart. [Officer Skornicka] later reviewed the video footage
       with management which confirmed this incident. The video footage
       also showed a male, later identified as [Horvath], entering the store
       after [Ms. Burnat] and taking possession of the same shopping cart.
       No one else prior to this time had come into contact with the
       shopping cart and wallet. The cart was pushed through the store
       while [Horvath] shopped. When [Horvath] checked out, the wallet
       was no longer in the cart. During an interview, a verbal admission to
       taking possession to the wallet and exiting Walmart was given by
       [Horvath]. [Horvath] returned the wallet to [Officer Skornicka]. [Ms.
       Burnat] identified the wallet as hers. The $180 and [Ms. Burnat’s]
       driver’s license were not recovered.

(Docket No. 1). Ultimately, Horvath pleaded no contest, and the trial court found

him guilty. In doing so, the trial court relied solely on “[its] previous review of

Officer Skornicka’s report in the face of the complaint and [Horvath’s] plea[] of

no contest.” Feb. 23, 2015 Hrg., p. 8.

       {¶15} The trial court’s basis for its finding of guilt presents two problems.

First, the record is silent as to any explanation of circumstances sufficient to find


                                         -7-
Case No. 13-15-10


Horvath guilty of theft. Neither the State nor the trial court stated on the record an

explanation of the facts supporting each essential element of the offense as

required under R.C. 2937.07. Although the trial court indicated that it was relying,

in part, on its earlier review of the complaint, such measures are insufficient to

satisfy the statutorily required explanation of circumstances. See Bowers, 9 Ohio

St.3d at 151. Rather, the complaint must be read into the record. Id.

       {¶16} The State argues that the trial court had more than sufficient

knowledge of the circumstances from which to render a finding of guilty based on

the testimony elicited from Officer Skornicka at the earlier suppression hearing.

We find this argument unpersuasive. See City of Cleveland v. Paramount Land

Holdings, LLC, 8th Dist. Cuyahoga No. 95448, 2011-Ohio-3383, ¶ 23 (an

explanation of circumstances is not satisfied by a presumption that the [trial] court

was aware of facts); State v. Keplinger, 2nd Dist. Greene No. 98-CA-24, 1998 WL

864837, *2 (Nov. 13, 1998) (an explanation of circumstances requires, at a

minimum, some positive recitation of facts). The relevant inquiry is not whether

the trial court could have rendered a sufficient explanation of circumstances based

on its knowledge of the case but whether the trial court actually made the

necessary explanation in this instance. Bowers at 151. Here, the trial court did

not.




                                         -8-
Case No. 13-15-10


       {¶17} Second, Horvath’s plea of no contest—in and of itself—is an

improper basis for a finding of guilt. Although Crim.R. 11 provides that a plea of

no contest is an admission of the truth of the facts in the complaint, R.C. 2937.07

provides a criminal defendant with the substantive right to require of the trial court

an explanation of circumstances following a plea of no contest. As such, R.C.

2937.07 supersedes Crim.R. 11. Bowers at 151. In considering Horvath’s plea of

no contest as a basis for its finding of guilt, the trial court erred.

       {¶18} Under R.C. 2937.07, when a plea of no contest is accepted in a

misdemeanor case, the explanation of circumstances serves as the evidence upon

which the trial court is to base its finding of guilty or not guilty. Here, the

evidence was insufficient to support Horvath’s conviction. When a conviction is

reversed due to insufficient evidence, jeopardy attaches, and a remand for a new

determination of guilt or innocence is prohibited by the Double Jeopardy Clauses

of the Fifth Amendment to the United States Constitution and Article I, Section 10

of the Ohio Constitution. State v. Kareski, 137 Ohio St.3d 92, 2013-Ohio-4008, ¶

14, citing Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

       {¶19} Based on the foregoing, we find that the trial court erred in finding

Horvath guilty in absence of an explanation of the circumstances pursuant to R.C.

2937.07. Accordingly, we sustain Horvath’s first assignment of error.




                                            -9-
Case No. 13-15-10


                         Assignment of Error Nos. II & III

       {¶20} In view of our disposition of Horvath’s First Assignment of Error,

his remaining assignments of error are rendered moot and need not be considered.

App.R. 12(A)(1)(c).

       {¶21} Having found error prejudicial to Horvath, in the particulars assigned

and argued, we reverse the judgment of the trial court and remand the matter for

further proceedings consistent with this opinion.

                                                             Judgment Reversed and
                                                                  Cause Remanded
WILLAMOWSKI, J., concurs.
SHAW, J., dissents.

/jlr




                                        -10-
