Kent v. Brooker

Opinion

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY

CITY OF KENT, OHIO, CASE NO. 2025-P-0085

Plaintiff-Appellee,

Criminal Appeal from the

- vs - Municipal Court, Kent Division

LEE JOHN BROOKER, Trial Court No. 2025 CRB 00771 K Defendant-Appellant.

OPINION AND JUDGMENT ENTRY

Decided: August 17, 2026

Judgment: Affirmed

Hope L. Jones, The City of Kent, Ohio, Law Director, and Eric R. Fink, Assistant Law Director, 320 South Depeyster Street, Kent, OH 44240 (For Plaintiff-Appellee).

Lee John Brooker, pro se, 317 Wilson Avenue, Kent, OH 44240 (Defendant-Appellant).

JOHN J. EKLUND, J.

{¶1} Appellant, Lee John Brooker, pro se, appeals his minor-misdemeanor conviction for disorderly conduct following a bench trial in the Portage County Municipal Court, Kent Division.

{¶2} We construe Appellant’s brief as challenging (1) the trial court’s failure to appoint legal counsel, (2) the sufficiency of the evidence to support his conviction, and (3) the manifest weight of the evidence.

{¶3} Having reviewed the record and applicable law, we find that Appellant’s assignments of error, so construed, are without merit. First, Appellant was not entitled to court-appointed counsel because he was charged with a minor misdemeanor and faced no possible jail time as a sentence. Second, Appellant’s conviction was supported by sufficient evidence. The trial testimony, if believed, supported a finding that Appellant engaged in at least “turbulent behavior” that “recklessly caused inconvenience, annoyance or alarm to another.” Third, the guilty verdict is not against the manifest weight of the evidence. Despite Appellant’s apparent disagreement with the witnesses’ testimony, the trial court found one or both of them to be credible, and there is no basis to disturb that determination.

{¶4} Therefore, we affirm the judgment of the Portage County Municipal Court, Kent Division.

Substantive and Procedural History

{¶5} On June 26, 2025, Appellant and David Smicklevich were at Kent Social Services in Kent, Ohio, for a free lunch. While Smicklevich was standing in line, Appellant approached him and asked, “Did you read the law?” According to Appellant, his question related to a prior incident between the two men from September 2024. Appellant contends that he was riding his bicycle on the road, when Smicklevich “lean[ed]” on his vehicle’s horn. Appellant lost control of his bicycle, hit the curb, and injured his hand.

{¶6} Smicklevich responded to Appellant’s query with a threat, stating that he would “squeeze [Appellant’s] nuts until they pop.” Smicklevich subsequently left the line and walked toward the front door to leave. Appellant followed and asked Smicklevich the same question. Smicklevich turned around, head-butted Appellant, and left. Appellant called the police and reported that Smicklevich had assaulted him. Smicklevich later testified that Appellant’s behavior was “argumentative,” “aggressi[ve],” and “potentially violent” and caused him “inconvenience,” “annoyance,” and “alarm.”

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{¶7} Officer Bolgrin of the City of Kent Police Department was dispatched to the premises for a reported assault. Officer Bolgrin encountered Appellant in the parking lot, who informed her that an individual named “Dave” had “head-butted” him and left the premises. Officer Bolgrin also spoke with the staff, none of whom wanted to be involved, but who indicated they were “inconvenienced, annoyed, or alarmed by the circumstances.”

{¶8} Officer Bolgrin reviewed surveillance video of the incident. She later testified that the video showed Appellant walk “straight up” to Smicklevich and “immediately confront[]” him, at which time a “verbal argument” ensued that “persisted for a few minutes.” Smicklevich then started walking out of the building. While Smicklevich was in the front entryway, Appellant “chased him down” and “cornered him.” The video then “cut[] out.” Officer Bolgrin described the two men as being “very close in proximately” and “acting . . . in a very kind of aggressive manner towards each other.” Officer Bolgrin also spoke with Smicklevich.

{¶9} On July 10, 2025, a complaint was filed in the Portage County Municipal Court, Kent Division, charging Appellant with Disorderly Conduct, a minor misdemeanor in violation of Kent Cod.Ord. 509.03(a)(1). Smicklevich was charged with the same offense.

{¶10} On July 30, 2025, Appellant was arraigned and pleaded not guilty.

{¶11} On November 13, 2025, Appellant’s and Smicklevich’s cases were tried to the bench, with both men proceeding pro se. The City first tried Smicklevich’s case and presented testimony from Appellant and Officer Bolgrin. The City next tried Appellant’s case and presented testimony from Smicklevich and Officer Bolgrin. Following

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Appellant’s case, the trial court found both men guilty, sentenced both to a $25 fine and court costs, and gave them 180 days to pay.

{¶12} On November 14, 2025, the trial court filed Appellant’s judgment of conviction. On November 20, 2025, the trial court filed a nunc pro tunc judgment entry correcting a clerical error.

{¶13} On November 26, 2025, Appellant timely appealed.

{¶14} Appellant’s brief does not set forth any assignments of error, as required.

See App.R. 16(A)(3). Instead, Appellant identifies 33 alleged errors in the trial transcript. Appellant’s appeal is subject to dismissal due to his brief’s noncompliance with the rules of court. See App.R. 12(A)(2); Eleventh Dist.Loc.R. 16(D). In the interests of justice, however, we exercise our discretion to decide the appeal on its merits.

Appointment of Counsel

{¶15} Appellant argues that the trial court should have provided him with legal counsel because he is indigent and the proceedings were “inherent[ly] unfair[ ]” based on his lack of “legal education or experience.” We construe Appellant’s argument as challenging the trial court’s failure to appoint him legal counsel.

{¶16} In Ohio, an individual charged with a minor misdemeanor, who faces no possible jail time as a sentence, is not entitled to appointed counsel. Mentor v. Meyers, 2014-Ohio-2011, ¶ 17 (11th Dist.). Appellant was charged with disorderly conduct in violation of Kent Cod.Ord. 509.03(a)(1), which is a minor misdemeanor that is not punishable by any jail time. See Kent Cod.Ord. 509.02(e)(1) and (2); 501.99(b)(1). Therefore, the trial court was not required to appoint Appellant legal counsel.

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{¶17} Appellant’s first assignment of error, as construed by this Court, is without merit.

Sufficiency/Manifest Weight of the Evidence

{¶18} Appellant also requests that we reverse the trial court’s judgment and find him not guilty. He contends that he did nothing wrong, much less anything illegal. We construe Appellant’s argument as challenging the sufficiency and the manifest weight of the evidence.

{¶19} “‘“Sufficiency” is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law.’” State v. Thompkins, 1997-Ohio- 52, ¶ 23, quoting Black’s Law Dictionary (6th Ed. 1990). “In essence, sufficiency is a test of adequacy.” Id. “An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. “The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” Id.

{¶20} “Although a court of appeals may determine that a judgment of a trial court is sustained by sufficient evidence, that court may nevertheless conclude that the judgment is against the weight of the evidence.” Thompkins at ¶ 24. “Weight of the evidence concerns ‘the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. Weight is not a question of

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mathematics, but depends on its effect in inducing belief.’” (Emphasis deleted.) Id., quoting Black’s. In considering whether a conviction is against the manifest weight of the evidence, “‘[t]he [appellate] court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.’” Id. at ¶ 25, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1983). “‘The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.’” Id., quoting Martin at 175.

{¶21} Appellant was convicted of disorderly conduct in violation of Kent Cod.Ord.

509.03(a)(1), which provides: “[1] [n]o person [2] shall recklessly cause inconvenience, annoyance or alarm to another [3] by . . . [e]ngaging in fighting, in threatening harm to persons or property, or in violent or turbulent behavior.”

{¶22} “A person acts recklessly when, with heedless indifference to the consequences, the person perversely disregards a substantial and unjustifiable risk that the person’s conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, the person perversely disregards a substantial and unjustifiable risk that such circumstances are likely to exist.” Kent Cod.Ord. 501.08(c).

{¶23} In the context of R.C. 2917.11(A)(1), i.e., Ohio’s identical disorderly-conduct statute, the Supreme Court of Ohio defined “turbulent” as “tumultuous behavior or unruly

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conduct characterized by violent disturbance or commotion.” State v. Reeder, 18 Ohio St.3d 25, 27 (1985).

{¶24} Appellant contends that he “merely asked [Smicklevich] a serious question,”

which was “entirely protected by [his] First Amendment right of Free Speech.” Appellant’s argument implicates the third component of Kent Cod.Ord. 509.03(a)(1), i.e., whether he “[e]ngag[ed] in fighting, in threatening harm to persons or property, or in violent or turbulent behavior.”

{¶25} Appellant presumes that he was convicted for making verbal statements.

“The United States Supreme Court has stated that no matter how rude, abusive, offensive, derisive, vulgar, insulting, crude, profane or opprobrious spoken words may seem to be their utterance may not be made a crime unless they are ‘fighting words’ as defined by that tribunal.” State v. Hoffman, 57 Ohio St.2d 129, 131 (1979). However, Kent Cod.Ord. 509.03(a)(1) “prohibits certain behavior.” Reeder at 26 (involving R.C. 2917.11(A)(1)).

{¶26} The trial evidence supports a finding that Appellant did more than merely speak to Smicklevich. Specifically, Smicklevich testified that Appellant engaged in behavior that was “argumentative,” “aggressi[ve],” and “potentially violent.” Similarly, Officer Bolgrin, based on her review of the surveillance video, described Appellant’s behavior as (1) “chas[ing]” and corner[ing]” Smicklevich, (2) “confront[ational],” (3) “aggressive,” and (4) part of a “verbal argument.” This testimony, if believed, was sufficient to establish that Appellant engaged in at least “turbulent behavior.”

{¶27} While Appellant disagrees with the witnesses’ testimony, the trial court apparently found one or both of them to be credible. The Supreme Court of Ohio has

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explained that the trier of fact “is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony.” Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80 (1984). Thus, the Court has held that “[t]he choice between credible witnesses and their conflicting testimony rests solely with the finder of fact[,] and an appellate court may not substitute its own judgment for that of the finder of fact.” State v. Awan, 22 Ohio St.3d 120, 123 (1986). This Court has explained that “[a] fact finder is free to believe all, some, or none of the testimony of each witness appearing before it.” State v. Fetty, 2012- Ohio-6127, ¶ 58 (11th Dist.). Upon review, we see no compelling basis to disturb the trial court’s credibility determination.

{¶28} Accordingly, Appellant’s second and third assignments of error, as construed by this Court, are without merit.

{¶29} For the foregoing reasons, the judgment of the Portage County Municipal Court, Kent Division, is affirmed.

MATT LYNCH, P.J., ROBERT J. PATTON, J., concur.

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JUDGMENT ENTRY

For the reasons stated in the opinion of this court, Appellant’s assignments of error, as construed by this court, are without merit. It is the judgment and order of this court that the judgment of the Portage County Municipal Court, Kent Division, is affirmed.

Costs to be taxed against Appellant.

JUDGE JOHN J. EKLUND

PRESIDING JUDGE MATT LYNCH, concurs

JUDGE ROBERT J. PATTON,

concurs

THIS DOCUMENT CONSTITUTES A FINAL JUDGMENT ENTRY

A certified copy of this opinion and judgment entry shall constitute the mandate pursuant to Rule 27 of the Ohio Rules of Appellate Procedure.

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