[Cite as State v. Hassinger, 2014-Ohio-3214.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                   :    JUDGES:
                                                :    Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                      :    Hon. Sheila G. Farmer, J.
                                                :    Hon. Craig R. Baldwin, J.
-vs-                                            :
                                                :
RYAN C. HASSINGER                               :    Case No. 13-COA-038
                                                :
        Defendant-Appellant                     :    OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Municipal Court,
                                                     Case No. 13-CRB-1046




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    July 22, 2014




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

ANDREW N. BUSH                                       RYAN C. HASSINGER, Pro Se
1213 East Main Street                                419 Luther Street
Ashland, OH 44805                                    Ashland, OH 44805
Ashland County, Case No. 13-COA-038                                                       2

Farmer, J.

      {¶1}   On September 28, 2013, appellant, Ryan Hassinger, was charged with

one count of disorderly conduct in violation of Ashland Municipal Ordinance

509.03(a)(1). Said charge arose from an incident wherein appellant and his estranged

wife, Tara Hassinger, engaged in a tugging match over their six year old child. The

child's arm was red, scratched, and swollen.

      {¶2}   A bench trial commenced on October 24, 2014. The trial court found

appellant guilty as charged, and ordered him to pay a fine of $150.00 plus court costs.

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

consideration. Assignments of error are as follows:

                                            I

      {¶4}   "THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

DENIED THE APPELLANTS MOTION TO DISMISS AFTER THE APPELLEE FAILED

TO HAVE THE APPELLANT ARRAIGNED WITHIN THE TIMELINE PROVIDED BY

ASHLAND MUNI R. 5."

                                            II

      {¶5}   "THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

DENIED THE APPELLANTS MOTION TO DISMISS WHEN THE APPELLEE FAILED

TO PROVIDE REQUESTED DISCOVERY IN A TIMELY MANNER."

                                           III

      {¶6}   "THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

FOUND THAT THE APPELLANT'S ALLEGED REFUSAL TO RELEASE HIS CHILD

CONSTITUTED VIOLENT OR TURBULENT BEHAVIOR."
Ashland County, Case No. 13-COA-038                                                    3


                                           IV

      {¶7}   "THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

IMPROPERLY WEIGHTED THE TESTIMONY OF THE APPELLEE'S WITNESSES

AFTER    THE    EVIDENCE      CLEARLY      SHOWS      MULTIPLE      INCONSISTENCIES

BETWEEN THEIR TESTIMONY, AND THEIR PREVIOUS STATEMENTS."

                                           V

      {¶8}   "THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

FOUND THAT THE APPELLEE'S OCTOBER 23, 2013 MOTION TO QUASH

SUBPOENAS MET THE PRIMA FACIE REQUIREMENT AND REQUIRED THE

APPELLANT TO DIVULGE INFORMATION PRIVILEGED UNDER THE WORK

PRODUCT DOCTRINE UNDER DURESS."

                                            I

      {¶9}   Appellant claims the trial court erred in denying his October 7, 2013

motion to dismiss based on an untimely arraignment under Loc.R. 5 of the Ashland

Municipal Court. We disagree.

      {¶10} "We review a trial court's decision on a motion to dismiss with a de novo

standard of review. State v. Walker, 10th Dist. No. 06AP–810, 2007-Ohio-4666, 2007

WL 2633791, ¶ 9-10. A de novo standard of review affords no deference to the trial

court's decision, and the appellate court independently reviews the record. Id." State v.

Romage, 10th Dist. Franklin No. 11AP-822, 2012-Ohio-3381.

      {¶11} Loc.R. 5 of the Ashland Municipal Court states in part: "When a law

enforcement officer either arrests or issues a citation or summons to a person being

charged with a violation of the law, the arraignment of that person shall be set no later
Ashland County, Case No. 13-COA-038                                                   4


than eight (8) days from the date the Defendant receives his or her citation or

summons."

       {¶12} It is undisputed that appellant was cited to appear on October 11, 2013,

thirteen days after the issuance of the citation on September 28, 2013. Appellant was

actually arraigned on October 7, 2013, nine days after the issuance of the citation. In

his October 7, 2013 motion to dismiss, appellant did not cite to any prejudice to him

because of the delayed arraignment. From our review of the docket and appellant's

various motions and subpoenas, we find no prejudice in the technical failure to hold the

arraignment on the ninth day.

       {¶13} Assignment of Error I is denied.

                                            II

       {¶14} Appellant claims the trial court erred in denying his October 22, 2013

motion to dismiss based on discovery violations. We disagree.

       {¶15} A trial court's decision on discovery violations is reviewed under an abuse

of discretion standard. State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966. 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.

State v. Adams, 62 Ohio St.2d 151 (1980).

       {¶16} Crim.R. 16 governs discovery and inspection. Subsection (L)(1) states the

following:



             The trial court may make orders regulating discovery not

       inconsistent with this rule.   If at any time during the course of the
Ashland County, Case No. 13-COA-038                                                      5


       proceedings it is brought to the attention of the court that a party has failed

       to comply with this rule or with an order issued pursuant to this rule, the

       court may order such party to permit the discovery or inspection, grant a

       continuance, or prohibit the party from introducing in evidence the material

       not disclosed, or it may make such other order as it deems just under the

       circumstances.



       {¶17} The time for preparation for trial was short given the mandates of the

speedy trial statute for minor misdemeanors (thirty days). R.C. 2945.71(A). Appellant

was arraigned on October 7, 2013 and a pre-trial was set for the same date. A trial date

was then set for October 24, 2013. On October 18, 2013, appellant filed a request for

sanctions for the state's failure to comply with his discovery request of October 7, 2013.

That discovery request was not a formal Crim.R. 16 discovery request, but a "Motion for

an Order to Release Evidence," requesting the production of an audio recorder seized

by the police. As a result of appellant's sanction motion, on October 19, 2013, the trial

court ordered the state to provide discovery and return the "digital device" by 1:00 p.m.1

       {¶18} We fail to find the trial court's resolution of the discovery issue to be an

abuse of discretion. Only two witnesses testified at trial for the state, Ms. Hassinger and

her stepfather. We find no prejudice to appellant.

       {¶19} Assignment of Error II is denied.




1
 Pursuant to Fifth Dist. App.R. 9(A)(1)(a), appellant failed to have the jacketed
handwritten orders of the trial court reduced to print. The notations are barely legible.
Ashland County, Case No. 13-COA-038                                                      6


                                           III, IV

       {¶20} Appellant claims the trial court erred in finding him guilty of disorderly

conduct as the evidence did not establish that his actions constituted violent or turbulent

behavior and Ms. Hassinger's testimony was not credible. We disagree.

       {¶21} On review for manifest weight, a reviewing court is to examine the entire

record, weigh the evidence and all reasonable inferences, consider the credibility of

witnesses and determine "whether in resolving conflicts in the evidence, the jury clearly

lost its way and created such a manifest miscarriage of justice that the conviction must

be reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d 172, 175 (1st

Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. The

granting of a new trial "should be exercised only in the exceptional case in which the

evidence weighs heavily against the conviction." Martin at 175. We note the weight to

be given to the evidence and the credibility of the witnesses are issues for the trier of

fact. State v. Jamison, 49 Ohio St.3d 182 (1990). The trier of fact "has the best

opportunity to view the demeanor, attitude, and credibility of each witness, something

that does not translate well on the written page." Davis v. Flickinger, 77 Ohio St.3d 415,

418, 1997-Ohio-260.

       {¶22} Appellant was convicted of violating Ashland Municipal Ordinance

509.03(a)(1) which states: "No person shall recklessly cause inconvenience, annoyance

or alarm to another by doing any of the following: Engaging in fighting, in threatening

harm to persons or property, or in violent or turbulent behavior."

       {¶23} The trial court was confronted with two distinct versions of appellant's

actions during the incident, the testimony of Ms. Hassinger and her stepfather, David
Ashland County, Case No. 13-COA-038                                                         7


Franklin, versus the testimony of appellant and his girlfriend, Mary Goon.              At the

conclusion of the trial, the trial court chose to believe that appellant caused

"inconvenience, annoyance, or alarm" and engaged in "violent or turbulent behavior" (T.

at 141-142, 143):



              And you don't have to prove anything here today. The burden of

      proof lies entirely with the State. So I have to decide if they proved those

      elements.     And by your own admission there clearly was annoyance,

      inconvenience, or alarm certainly to Mrs. Hassinger. I am finding for the

      record the State has proven there was also annoyance, inconvenience, or

      alarm to your daughter [R.], and that's readily apparently from that audio

      tape.

              ***

              You certainly weren't as loud as she was. You certainly weren't as

      annoying as she seemed to be. But you did approach, you did instigate

      the situation. You did apparently, by all the testimony, grab the child's

      arm. And I understand your position that you have a legal right to do that.

      I don't agree with you that you have a legal right to continue to hold on to it

      to the extent that it causes injury. So I am finding that you engaged in

      violent or turbulent behavior by continuing to hold on to that arm when it

      should have been apparent to anyone there that there was harm being

      caused, and that doing so was reckless.
Ashland County, Case No. 13-COA-038                                                     8


              Therefore, I am finding that you engaged in violent or turbulent

       behavior by continuing to grasp that arm. And I'm finding that in doing so

       you caused inconvenience, annoyance, or alarm to both your wife and

       your daughter.



       {¶24} We are not the trier of facts.        The trial court observed, heard, and

evaluated each witness. Upon review, we find sufficient credible evidence to support

the trial court's findings, and no manifest miscarriage of justice.

       {¶25} Assignments of Error III and IV are denied.

                                              V

       {¶26} Appellant claims the trial court erred in finding the state's motion to quash

defendant's request for subpoenas met the prima facie requirement, requiring appellant

to reveal privileged information under duress in violation of the work product rule. We

disagree.

       {¶27} On October 23, 2013, the state filed a motion to quash appellant's request

for subpoenas. A hearing was held same day. By judgment entry filed October 24,

2013, the trial court granted in part and denied in part the state's motion.

       {¶28} Pursuant to Crim.R. 16(J)(1), "work product" includes, but is not limited to,

"reports, memoranda, or other internal documents made by the prosecuting attorney or

defense counsel, or their agents in connection with the investigation or prosecution or

defense of the case."

       {¶29} In this age of the Modern Courts Amendments, the purpose of the modern

discovery process is to not try cases by abuse [Crim.R. 16(A)]:
Ashland County, Case No. 13-COA-038                                                   9




                (A) Purpose, Scope and Reciprocity. This rule is to provide all

      parties in a criminal case with the information necessary for a full and fair

      adjudication of the facts, to protect the integrity of the justice system and

      the rights of defendants, and to protect the well-being of witnesses,

      victims, and society at large. All duties and remedies are subject to a

      standard of due diligence, apply to the defense and the prosecution

      equally, and are intended to be reciprocal. Once discovery is initiated by

      demand of the defendant, all parties have a continuing duty to supplement

      their disclosures.



      {¶30} Under Evid.R. 104(A), questions of relevancy are preliminary matters to

be determined by the trial court. "Relevant evidence" is described in Evid.R. 401 as

"evidence having any tendency to make the existence of any fact that is of consequence

to the determination of the action more probable or less probable than it would be

without the evidence."       Evid.R. 402 further provides that irrelevant evidence is

inadmissible:



                All relevant evidence is admissible, except as otherwise provided

      by the Constitution of the United States, by the Constitution of the State of

      Ohio, by statute enacted by the General Assembly not in conflict with a

      rule of the Supreme Court of Ohio, by these rules, or by other rules
Ashland County, Case No. 13-COA-038                                                  10


      prescribed by the Supreme Court of Ohio. Evidence which is not relevant

      is not admissible.



      {¶31} Under Crim.R. 17(C), a trial court, upon the filing of a motion to quash,

may quash or modify the subpoena if compliance would be unreasonable or oppressive.

The trial court held a hearing and inquired about the requested subpoenas to determine

relevancy and whether compliance would be unreasonable or oppressive. Upon review,

we fail to find appellant was in any way prejudiced by the trial court's handling of the

motion.

      {¶32} Assignment of Error V is denied.

      {¶33} The judgment of the Municipal Court of Ashland County, Ohio is hereby

affirmed.

By Farmer, J.

Gwin, P.J. and

Baldwin, J. concur.




SGF/sg 618
