[Cite as State v. Flesch, 2019-Ohio-1039.]


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

STATE OF OHIO                                       C.A. No.       17CA011175

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
T.F.                                                COURT OF COMMON PLEAS
        Defendant                                   COUNTY OF LORAIN, OHIO
                                                    CASE No.   16CR093398
        and

FREDERICK FLESCH

        Appellant

                                  DECISION AND JOURNAL ENTRY

Dated: March 25, 2019



        TEODOSIO, Presiding Judge.

        {¶1}     Appellant, Frederick Flesch, appeals from the trial court’s judgment order

sentencing him for direct contempt in the Lorain County Court of Common Pleas. This Court

reverses and remands.

                                               I.

        {¶2}     Mr. Flesch was a juror in T.F.’s criminal case in the Lorain County Court of

Common Pleas. Throughout the proceedings, the court repeatedly admonished the jury to avoid

reading outside information such as newspapers and the internet, and discussed the issue of

contempt. During jury deliberations, some jurors informed the court’s bailiff that Mr. Flesch had

brought a newspaper article about T.F.’s case into the jury room and discussed it with the jury.

The court brought Mr. Flesch into the courtroom and inquired of him on the record as to the
                                                  2


allegations. He admitted to “skimming” the article, but recalled certain facts from it such as

T.F.’s name and a woman screaming in the bathroom. He further admitted that he brought the

article into the jury room and asked his fellow jurors if the woman had screamed. When they

responded in the affirmative, he brought the article out and asked if that particular information

should be in the newspaper while they were deliberating. The court instructed him to return to

the jury room. Next, the court inquired of four other jurors individually on the record and they

all told the court a similar story as to the newspaper incident in the jury room.

       {¶3}    The trial court ordered a mistrial in T.F.’s case and found Mr. Flesch guilty of

direct contempt. At a later date, the court sentenced Mr. Flesch to 30 days in jail and ordered

him to pay a $250.00 fine and court costs. The court suspended 23 days in jail and $100.00 of

the fine under the conditions that Mr. Flesch maintain good behavior for one year and pay fines

and costs, including jury costs in the amount of $1,525.00.

       {¶4}    Mr. Flesch now appeals from the trial court’s judgment order. He raises three

assignments of error for this Court’s review.

                                                 II.

                               ASSIGNMENT OF ERROR ONE

           THE COURT ERRED IN DEPRIVING THE JUROR OF HIS DUE
           PROCESS RIGHT[S] TO NOTICE, COUNSEL, AND A HEARING ON AN
           INDIRECT CONTEMPT CHARGE.

       {¶5}    In his first assignment of error, Mr. Flesch argues that the trial court erred in

depriving him of his due process rights to notice, counsel, and a hearing before finding him

guilty of contempt. We agree.

       {¶6}    “R.C. 2705.09 specifically affords appellate review for contempt orders.” State

ex rel. Tilford v. Crush, 39 Ohio St.3d 174, 177 (1988).            This Court reviews contempt
                                                 3


proceedings under an abuse of discretion standard. Weaver v. Weaver, 9th Dist. Wayne No.

15AP0015, 2016-Ohio-1356, ¶ 9. “The term ‘abuse of discretion’ connotes more than an error of

law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or unconscionable.”

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying an abuse of discretion

standard, a reviewing court is precluded from simply substituting its own judgment for that of the

trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).

       {¶7}    Contempt of court may be generally defined as disobedience of a court order or

conduct that brings the administration of justice into disrespect or impedes a court’s ability to

perform its functions. Freeman v. Freeman, 9th Dist. Wayne No. 07CA0036, 2007-Ohio-6400,

¶ 45. See also R.C. 2705.02. Contempt proceedings are regarded as sui generis, neither wholly

civil nor wholly criminal actions. Brown v. Executive 200, Inc., 64 Ohio St.2d 250, 253 (1980).

“It is well-established that an alleged contemnor must be afforded due process.” Edminister v.

Edminister, 9th Dist. Summit No. 25428, 2011-Ohio-1899, ¶ 10. “‘What constitutes due process

in a contempt proceeding depends to a large extent upon whether the contempt is direct or

indirect, and whether it is civil or criminal.’” Petersheim v. Petersheim, 9th Dist. Wayne No.

16AP0043, 2017-Ohio-8782, ¶ 11, quoting Cincinnati v. Cincinnati Dist. Council 51, 35 Ohio

St.2d 197, 202 (1973).

       {¶8}    Contempt may be classified as either civil or criminal, depending on the character

and purpose of the contempt sanctions. State v. Nelson, 9th Dist. Lorain No. 03CA008242,

2003-Ohio-3922, ¶ 7. “‘If sanctions are primarily designed to benefit the complainant through

remedial or coercive means, then the contempt proceeding is civil.’” Harvey v. Harvey, 9th Dist.

Wayne Nos. 09CA0052 and 09CA0054, 2010-Ohio-4170, ¶ 5, quoting Denovchek v. Bd. of

Trumbull Cty. Commr., 36 Ohio St.3d 14, 16 (1988). “Criminal contempt involves offenses
                                                  4


against the process of the court and its sanctions therefore are punitive in nature.” Nelson at ¶ 7.

“‘[I]f [the contempt] is civil, then the offending party is entitled to only those due process

protections afforded parties in civil actions, whereas, if it is criminal, the party is entitled to the

due process protections normally afforded defendants in criminal actions.’” Petersheim at ¶ 13,

quoting Doerfler v. Doerfler, 9th Dist. Wayne No. 06CA0021, 2006-Ohio-6960, ¶ 16. Criminal

contempt must be proven beyond a reasonable doubt, and “[t]he court must consider the totality

of the circumstances and ascertain whether the contemnor had the intent to obstruct the

administration of justice or disobey an order of the court.” Nelson at ¶ 7. The contemnor is

presumed innocent and cannot be compelled to testify against him or herself. Petersheim at ¶ 17.

Here, the parties do not dispute that Mr. Flesch was convicted of criminal contempt. The

sanctions imposed were not remedial or coercive sanctions intended to bring Mr. Flesch into

compliance with the court’s order, but were instead punitive sanctions intended solely to punish

him for violating the court’s order. See Petersheim at ¶ 16.

       {¶9}    Additionally, “[c]ontempt is either direct or indirect, depending on where it

happens.” Forrer v. Buckeye Speedway, Inc., 9th Dist. Wayne No. 07CA0027, 2008-Ohio-4770,

¶ 14. Indirect contempt occurs outside the presence of the court. Petersheim at ¶ 11. See also

State v. Bilder, 9th Dist. Summit No. 15139, 1992 WL 74212, *3 (Apr. 8, 1992) (stating indirect

contempt is misbehavior, committed outside the presence of the court, that tends to obstruct the

due and orderly administration of justice.)        Contrarily, “[d]irect contempt is disrespectful

behavior that occurs in the presence of the court, or near the presence of the court, and disrupts

the administration of justice.” (Emphasis added.) Petersheim at ¶ 11. See also Bilder at *3

(defining direct contempt as requiring immediate punishment to preserve the court’s authority,

taking place in the presence of the judge in open court or in or before any of its constituent parts,
                                                  5


such as the court room or jury, and obstructing the administration of justice by delaying or

hindering or influencing a pending case.); R.C. 2705.01.

         {¶10}   It is clear from the record that the trial court found Mr. Flesch guilty of direct

contempt. The parties do not dispute the fact that the incident did not occur in the actual

presence of the judge, but instead occurred inside the jury room during deliberations. However,

Mr. Flesch first argues that because the incident occurred outside the presence of the court, his

conduct could only have constituted indirect contempt. The State contends that the trial court

correctly found Mr. Flesch guilty of direct contempt because the incident occurred in the jury

room during deliberations and resulted in a mistrial, thus, it occurred sufficiently near the court

and disrupted the administration of the court. We agree with the State and conclude that because

Mr. Flesch’s actions occurred in the jury room during deliberations, such conduct occurred near

the presence of the court and disrupted the administration of justice, and therefore the trial court

did not err in classifying Mr. Flesch’s conduct as direct contempt. See Petersheim at ¶ 11; Bilder

at *3.

         {¶11} Mr. Flesch also argues that the trial court erred in failing to afford him notice of a

hearing, an opportunity to be heard, the ability to confront or cross-examine witnesses, and the

right to counsel.     The State contends that because Mr. Flesch’s actions constituted direct

contempt, the trial court could properly deal with the matter summarily under R.C. 2705.01, and

thus written charges, notice of a hearing, the appointment of counsel, and the cross-examination

of witnesses were not required.

         {¶12} Direct contempt is further classified as either occurring in the actual presence of

the judge or in the constructive presence of the court. Thompson v. Thompson, 9th Dist. Lorain

No. 00CA007747, 2001 WL 948715, *1 (Aug. 22, 2001). When contemptuous conduct occurs
                                                 6


in the actual presence of the judge, direct contempt may be dealt with summarily, without a

written charge or a hearing, as the judge is acting on his or her personal knowledge of all the

facts. Id. See also 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”); In re Neff, 20 Ohio App.2d 213 (5th Dist.1969), paragraph four of the

syllabus (stating that when contempt occurs in the presence of the judge, the contemnor waives

his due process rights by voluntarily placing the evidence directly before the court, effectively

depriving the court of any opportunity to advise the contemnor of his rights.).

       {¶13} A summary proceeding under R.C. 2705.01 is not authorized, however, simply

because the contemnor’s conduct constitutes direct contempt, but only when there is a need to

immediately vindicate the court’s authority and restore order to the proceedings before the court.

See In re Wingrove, 4th Dist. Washington No. 02CA4, 2003 WL 246079, *5 (Jan. 21, 2003).

“[F]or a court to exercise the extraordinary but narrowly limited power to punish for contempt

without adequate notice and opportunity to be heard, the court-disturbing misconduct must not

only occur in the court’s immediate presence, but [] the judge must have personal knowledge of

it acquired by his own observation of the contemptuous conduct.” In re Oliver, 333 U.S. 257,

274-275 (1948), citing Cooke v. United States, 267 U.S. 517 (1925). “[K]nowledge acquired

from the testimony of others, or even from the confession of the accused, would not justify

conviction without a trial in which there was an opportunity for defense.”            Id. at 275.

Consequently, when contemptuous conduct occurs only in the court’s constructive presence, and

the judge does not have personal knowledge of it acquired by his own observations:

       [D]ue process of law * * * requires that one charged with contempt of court be
       advised of the charges against him, have a reasonable opportunity to meet them
       by way of defense or explanation, have the right to be represented by counsel, and
       have a chance to testify and call other witnesses [on] his behalf, either by way of
                                                 7


       defense or explanation. The narrow exception to these due process requirements
       includes only charges of misconduct, in open court, in the presence of the judge,
       which disturbs the court’s business, where all of the essential elements of the
       misconduct are under the eye of the court, are actually observed by the court, and
       where immediate punishment is essential to prevent “demoralization of the court’s
       authority” before the public. If some essential elements of the offense are not
       personally observed by the judge, so that he must depend upon statements made
       by others for his knowledge about these essential elements, due process requires,
       according to the Cooke case, that the accused be accorded notice and a fair
       hearing as above set out.

Id. at 275-276. For direct contempt proceedings that require the taking of testimony, such notice

may be informally given, provided the court advises the accused of the object of the hearing in

accord with due process of law. Neff at paragraph ten of the syllabus. It is not sufficient that the

contemnor learns from the terms of the resulting judgment, as such knowledge comes too late.

Id.

       {¶14} We respectfully disagree with the dissent’s suggestion that we should ignore the

well-settled distinction between the two types of direct contempt because Mr. Flesch “makes no

mention” of it in his merit brief. As noted above, Mr. Flesch argues that his actions constituted

indirect contempt and, as such, he could not earnestly be expected to distinguish between

indirect contempt that occurs in the “actual presence of the judge” or “constructive presence of

the court” in his brief when no such distinction exists. Nevertheless, although his overall

classification of the contempt in this case is inaccurate, Mr. Flesch cites to case law regarding

contempt proceedings wherein “the acts are not within the personal knowledge of the judge” and

the “court has not personally observed the essential elements of the contempt and must depend

on the statements of others for knowledge of the essential elements,” while explicitly arguing in

his brief that “the [j]udge did not have personal knowledge and he instead elicited the

information from the jurors and Mr. Flesch himself.” This language certainly contemplates the

distinction between contempt occurring in the actual presence of the judge or the constructive
                                                8


presence of the court, and we have therefore not exceeded the scope of our review in addressing

the arguments contained within Mr. Flesch’s brief.

       {¶15} Here, although the alleged conduct could be properly classified as direct

contempt, the incident only occurred in the constructive presence of the court, and therefore

summary proceedings under R.C. 2705.01 were not appropriate. A review of the record shows

that, prior to finding Mr. Flesch guilty of contempt, the trial court did not provide him with

notice of a contempt charge against him, did not afford him the right to counsel, and did not hold

a hearing affording him the opportunity to be heard and to cross-examine witnesses. Therefore,

we can only conclude that Mr. Flesch’s due process rights were violated and, consequently, that

the trial court abused its discretion and erred in imposing criminal contempt sanctions. See

Petersheim at ¶ 17. The dissent focuses on the general relationship between the trial court and a

jury to support its conclusion that a trial court judge should have the authority to summarily

punish juror conduct he has not personally observed, but the law simply does not support such a

conclusion. Where direct criminal contempt occurs not in the actual presence of the trial court

judge but only in the constructive presence of the court, the alleged contemnor must be afforded

due process, including the right to notice of the contempt charge, the right to counsel, and the

right to a hearing affording him the opportunity to be heard and to cross-examine witnesses. See

Oliver at 275-276. To hold otherwise would not only run afoul of United States Supreme Court

precedent, but could lead to grave consequences whereby jurors are denied basic constitutional

rights and are unjustly incarcerated simply because they are jurors in the midst of performing,

sometimes unwillingly, a paramount and necessary civic duty in our society.

       {¶16} Accordingly, Mr. Flesch’s first assignment of error is sustained.
                                                 9


                              ASSIGNMENT OF ERROR TWO

       THE COURT ERRED IN FORCING THE JUROR TO TESTIFY AGAINST
       HIMSELF IN A CRIMINAL CONTEMPT.

                             ASSIGNMENT OF ERROR THREE

       THE COURT ERRED IN FINDING CRIMINAL CONTEMPT WHEN THERE
       WAS REASONABLE DOUBT AND AGAINST THE MANIFEST WEIGHT OF
       EVIDENCE.

       {¶17} Mr. Flesch raises two additional challenges to the trial court’s contempt order. As

our resolution of his first assignment of error is dispositive of this appeal, we decline to address

his second and third assignments of error as they have been rendered moot.             See App.R.

12(A)(1)(c).

                                                III.

       {¶18} Mr. Flesch’s first assignment of error is sustained. We decline to address his

second and third assignments of error as they have been rendered moot. The judgment of the

Lorain County Court of Common Pleas is reversed and the cause is remanded for further

proceedings consistent with this decision.

                                                                               Judgment reversed,
                                                                              and cause remanded.




       There were reasonable grounds for this appeal.

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

Pleas, County of Lorain, 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
                                                 10


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.

       Costs taxed to Appellee.




                                                       THOMAS A. TEODOSIO
                                                       FOR THE COURT




HENSAL, J.
CONCURS.

CARR, J.
DISSENTING.

       {¶19} I respectfully dissent as I believe that distinguishing juror misconduct of this

nature from misconduct that occurs in the actual presence of the trial court frustrates the trial

court’s ability to preserve the integrity of a criminal proceeding and protect the rights of the

accused. Moreover, I believe this Court has exceeded the scope of its review. Flesch does not

make the argument that the majority addresses and upon which it ultimately bases its decision.

Flesch makes no mention of the distinction between juror misconduct that occurs in the actual

presence of the court as opposed to the constructive presence of the court. Instead, he merely

asserts in his assignment of error that his conduct in this matter should be classified as indirect

contempt.

       {¶20} The unfortunate circumstances of this case placed the trial court in a precarious

position. The trial judge was forced to walk a tightrope while juggling the rights and interests of

the accused, the offending juror, the State, and society at large.
                                                 11


       {¶21} There is no question that jurors play a vital role in the American judicial system.

But they do so under the control of the trial court. The Handbook for Trial Jurors Serving in the

United States District Courts summarizes this close relationship: “The judge determines the law

to be applied in the case while the jury decides the facts. Thus, in a very important way, jurors

become           part      of       the        court        itself.”              Available         at

http://www.vaed.uscourts.gov/jury/jurortrialhandbook.pdf (accessed March 5, 2019). In Ohio,

jurors in criminal cases take an oath to carefully deliberate all matters before the court to the best

of their skill and understanding, and to do so without prejudice or bias. R.C. 2945.28(A). Let

there be no doubt- Flesch, by his own admission and the testimony of four other jurors, failed to

keep his oath.

       {¶22} Of course, the role of jurors springs forth from a criminal defendant’s

fundamental right to a fair and impartial jury as guaranteed by the Sixth Amendment to the

United States Constitution and Article I, Section 5 of the Ohio Constitution. As Justice Brennan

observed, “[t]he right to a fair trial by a jury of one’s peers is unquestionably one of the most

precious and sacred safeguards enshrined in the Bill of Rights.” Neb. Press Assn. v. Stuart, 427

U.S. 539, 572 (1976) (Brennan, J., concurring in the judgment).             Upon learning of juror

misconduct, the trial court’s foremost concern must be to protect the rights of the accused.

Moreover, “[t]he State and the public have a significant interest in the integrity of the judicial

process and that interest must impact the mistrial decision.” State v. Ross, 9th Dist. Summit No.

20980, 2002-Ohio-7317, ¶ 33. In order to determine whether there is a manifest necessity to

declare a mistrial, the trial court, upon learning of potential juror misconduct, must immediately

voir dire the jury so that it can properly balance “the defendant’s right to have the charges

decided by a particular tribunal * * * against society’s interest in the efficient dispatch of
                                                 12


justice.” Ross at ¶ 23, quoting State v. Glover, 35 Ohio St.3d 18, 19 (1988). “A jury tainted with

outside information and a juror who refuses to deliberate in good faith implicates not only the

defendant’s right but also the public’s interest in the integrity of the judicial process.” Ross at ¶

33,

       {¶23} All of the competing interests that a trial court must balance collided in this case

when Flesch defied the trial court’s instructions and corrupted jury deliberations. The trial court

specifically instructed the jury to avoid reading the newspaper. The trial court further warned the

jurors that they could be held in contempt for disobeying jury instructions. Despite being on

notice that he could not introduce outside materials during deliberations, Flesch brought a

newspaper article about the case into the jury room and discussed its contents. Several jurors,

pursuant to their oath, notified the bailiff of their fellow juror’s misconduct. The trial court

immediately took measures to find out what occurred. Flesch admitted to the trial court that he

discussed the article with his fellow jurors. Four other jurors told the trial court about Flesch’s

misconduct in the jury room during deliberations.

       {¶24} Flesch’s actions took place in the jury room, during the course of deliberations.

This conduct constituted direct contempt. Under these circumstances, it is critical that a trial

court, through its contempt powers, possesses the ability to expeditiously vindicate the rights of

the accused, maintain the public’s interest in the integrity of the judicial process, and, through its

contempt power, to punish the offending juror.

       {¶25} While the majority couches its discussion in terms of juror misconduct that only

occurred in the constructive presence of the trial court, as opposed to the actual presence of the

judge, I would guard against applying the concept of constructive presence to circumstances such

as this where the entire jury was, by law, under the immediate control of the trial court when the
                                                13


juror engaged in misconduct. When a case is submitted to the jurors, the jurors are to be kept

together under the supervision of an officer until the court releases them. R.C. 2945.33. The

relationship between the trial court and jury during deliberations is so close that it is protected

from disruption by the Revised Code. If the trial court’s officer who supervises the jury engages

in or permits improper communication with the jury, the officer can be imprisoned for one to ten

years. R.C. 2945.32.

       {¶26} Though the majority relies on In re Oliver, 333 U.S. 257 (1948), a case with a

very unique set of facts,1 the instant case involves a much more conventional scenario where the

trial court had a pressing need to protect the integrity of the jury, ensure a fair trial for the

accused, and vindicate the court’s authority. Under these circumstances, where a juror acting as

an arm of the court deliberately undermined the jury deliberations, the trial court should have

authority to engage in summary contempt proceedings.

       {¶27} In light of the foregoing, I respectfully dissent.


APPEARANCES:

DANIEL C. KULIK and GEOGGREY L. OGLESBY, Attorneys at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and MATTHEW A. KERN, Assistant Prosecuting
Attorney, for Appellee.




       1
          In Oliver, a judge who was serving as a “one-man grand jury” decided to summarily jail
a grand jury witness for contempt upon concluding that the witness’s testimony was not credible.
Id. at 258-259.
