State v. Felson

2023 Ohio 3071

• Court: Ohio Court of Appeals
• Decided: September 1, 2023
• Docket: C-220559
• Status: Published

Opinion

[Cite as State v. Felson, 2023-Ohio-3071.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-220559 TRIAL NO. 22CRB-17254 Plaintiff-Appellee, : O P I N I O N. vs. :

EDWARD FELSON, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 1, 2023

Emily Smart Woerner, City Solicitor, William T. Horsley, Chief Prosecuting Attorney, and Danielle Ferris, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Edward Felson, pro se. OHIO FIRST DISTRICT COURT OF APPEALS

BERGERON, Presiding Judge.

{¶1} During a hearing regarding his client’s failure to comply with discovery

requests, the trial court held defendant-appellant Edward Felson in direct criminal

contempt after an outburst in which he voiced displeasure with the court’s ruling that

held him accountable, jointly and severally, with his client for attorney’s fees. Mr.

Felson was ultimately ordered to pay a $250 fine at the show cause hearing that

followed. He now appeals, insisting that the trial court erred by finding him in

contempt and endeavoring to minimize the significance of his actions. After reviewing

the record, however, we find his argument unpersuasive and affirm the trial court’s

judgment.

I.

{¶2} In September 2022, Mr. Felson appeared before the trial court to defend

his client in a sanctions hearing concerning his client’s failure to comply with discovery

requests. Having just returned from a three-week international vacation the night

before, Mr. Felson professed that he had not yet read the opposing party’s motion filed

during his vacation thanks to poor internet connections abroad. He accordingly

requested more time to review the motion, offering up a week as a suitable time-period

to analyze the 55-page motion. The court, however, granted him only a five-minute

recess before proceeding with the hearing.

{¶3} Prior to this September hearing, the trial court had admonished Mr.

Felson twice before at two separate hearings, once for interrupting and being

dismissive of the court, and a second time for making unwarranted attacks against

opposing counsel. These admonishments did not have their intended effect, as Mr.

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Felson interrupted or spoke out of turn during the September hearing at least eight

different times, interrupting both opposing counsel and the trial court judge.

{¶4} As the hearing wound down, the trial court ultimately found Mr. Felson

and his client jointly and severally liable for sanctions related to discovery

improprieties. The following exchange then prompted the contempt finding:

The Court: Defense Counsel, Edward J. Felson, is jointly and severally

liable for the $15,351 –

Mr. Felson: Aw, Judge, you can’t do that.

The Court: -- and the total fee.

Mr. Felson: That’s ridiculous. Come on, Judge. Really?

The Court: Mr. Felson, you’re now in contempt. You’re now in

contempt, sir. That’s totally disrespectful. You’ll be down here for a

hearing of show cause.

{¶5} At the subsequent show cause hearing, Mr. Felson insisted that he did

not harbor any contemptuous feelings towards the court, suggesting that the contempt

charge stemmed from the court’s personal dislike of him. The court responded that

Mr. Felson was cited for contempt “based on [his] lack of respect for the court and

discourteous treatment.” The court also discussed previous (unheeded) warnings that

Mr. Felson had received concerning his conduct. The court ordered him to pay a $250

fine, leading to this appeal.

II. {¶6} In his sole assignment of error, Mr. Felson argues that the trial court

erred in finding him in direct criminal contempt. He insists that his allegedly

contumacious comments—saying, “That’s ridiculous. Come on, Judge,”—were made

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at the end of the hearing and did not obstruct the administration of justice to a level

that would warrant finding him in contempt. The state responds that the frequency of

Mr. Felson’s interruptions during the hearing and the content of his final

interruption—which challenged the court’s authority to impose sanctions—elevated

the conduct to a contemptuous level.

{¶7} Appellate courts in Ohio “review a trial court’s contempt sanction under

an abuse-of-discretion standard.” Heekin v. Silver Rule Masonry, Inc., 1st Dist.

Hamilton No. C-100585, 2011-Ohio-2775, ¶ 10. “An abuse of discretion connotes more

than a mere error of judgment; rather, ‘it implies that the court’s attitude is arbitrary,

unreasonable, or unconscionable.’ ” Hayes v. Durrani, 1st Dist. Hamilton No. C-

190617, 2021-Ohio- 725, ¶ 8, quoting Boolchand v. Boolchand, 1st Dist. Hamilton Nos.

C-200111 and C-200120, 2020-Ohio-6951, ¶ 9. An abuse of discretion occurs when “a

court exercis[es] its judgment, in an unwarranted way, in regard to a matter over

which it has discretionary authority.” Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-

Ohio-3304, 187 N.E.3d 463, ¶ 35.

{¶8} The trial court held Mr. Felson in direct criminal contempt. “Direct

contempt is misbehavior that is committed in the presence of the court in its judicial

function, and that obstructs the due and orderly administration of justice.” State v.

Webster, 1st Dist. Hamilton Nos. C-070027 and C-070028, 2008-Ohio-1636, ¶ 56,

citing R.C. 2705.01, and In re Lands, 146 Ohio St. 589, 595, 67 N.E.2d 433 (1946).

“ ‘Criminal contempt * * * is usually characterized by an unconditional prison sentence

or fine. Its sanctions are punitive in nature, designed to vindicate the authority of the

court.’ ” State v. Hudson, 7th Dist. Mahoning No. 10 MA 157, 2011-Ohio-6424, ¶ 33,

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quoting Denovchek v. Bd. of Trumbull Cty. Commrs., 36 Ohio St.3d 14, 16, 520 N.E.2d

1362 (1988).

{¶9} A court may punish a person for direct contempt when two conditions

are met. “First, the judge must have personal knowledge of the disruptive conduct

‘acquired by his own observation of the contemptuous conduct.’ ” State v. Stegall, 1st

Dist. Hamilton Nos. C-110767, C-120112 and C-120113, 2012-Ohio-3792, ¶ 40, quoting

In re Oliver, 333 U.S. 257, 275, 68 S.Ct. 499, 92 L.Ed. 682 (1948). No one disputes

that Mr. Felson’s comments occurred before the judge, satisfying this requirement.

“Second, the conduct must pose ‘an open threat to the orderly procedure of the court

and such a flagrant defiance of the person and presence of the judge before the public’

that, if ‘not instantly suppressed and punished, demoralization of the court’s authority

will follow.’ ” Id.

{¶10} Contempt cannot be found when conduct simply offends the court’s

sensibilities, but it must “pose an actual or imminent threat to the administration of

justice.” Webster at ¶ 57, citing State v. Conliff, 61 Ohio App.2d 185, 189, 401 N.E.2d

469 (10th Dist.1978). Judges should be careful not to become “personally embroiled”

in a contempt hearing to the extent that there is “bias, or such a likelihood of bias or

an appearance of bias that the judge was unable to hold the balance between

vindicating the interests of the court and the interests of the accused.” Ungar v.

Sarafite, 376 U.S. 575, 588, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964).

{¶11} Mr. Felson compares his comments at the end of the sanction hearing

to those at issue in Conliff and State v. Drake, 73 Ohio App.3d 640, 643-644, 598

N.E.2d 115 (8th Dist.1991). In Conliff, a direct criminal contempt charge was reversed

on appeal when the defendant asked the sentencing judge between hearings if the

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judge was going to take his “pound of flesh” and sentence him. Conliff at 188. The

appellate court in Conliff found that this statement, while offensive to the court’s

sensibilities, did not rise to the level of contempt because the comment was singular,

occurred off the record at the end of the proceeding, and did not “ ‘impede, embarrass

or obstruct the court in the performance of its functions.’ ” Id. at 190, quoting In re

Green, 172 Ohio St. 269, 175 N.E.2d 59 (1961), paragraph one of the syllabus. In

Drake, a contempt conviction was similarly overturned when the defendant used

profane language towards the judge as he was being led out of the courtroom after

proceedings had concluded. Drake at 644. The Drake court found that the outburst,

while rude and improper, did not pose an imminent threat to the administration of

justice or disrupt the court proceedings. Id.

{¶12} By contrast, the state likens Mr. Felson’s situation to that in Hudson,

7th Dist. Mahoning No. 10 MA 157, 2011-Ohio-6424, at ¶ 40, where a contempt

conviction was upheld when the court had issued a prior warning to the defendant.

The trial court found the defendant in Hudson in contempt after he continued to talk

during court proceedings after the court had instructed him to stop. Id. Though the

defendant’s comments were not boisterous or derogatory in nature, the Hudson court

held his behavior was improper because his soliloquy interrupted proceedings and he

continued talking even after the court ordered him to stop. Id.

{¶13} Here, we find that Mr. Felson’s actions during the sanctions hearing are

distinguishable from those in Conliff and Drake. First, the comments made by Mr.

Felson were made on the record as the judge attempted to hand down his decision

(rather than after the fact). Furthermore, like Hudson, Mr. Felson had already been

warned about interrupting both the court and opposing counsel numerous times both

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during the hearing in question and in two prior hearings. And while the attorney in

Hudson was held in contempt after a mere two interruptions, Mr. Felson interrupted

eight times before the trial court intervened. See Hudson at ¶ 40.

{¶14} Furthermore, we cannot focus myopically on Mr. Felson’s final

comment: “That’s ridiculous. Come on Judge,”—which, admittedly, seemed to be the

final straw for the trial court. We must take into consideration the full picture of the

context of counsel’s behavior at the hearing as we have described above. We find that

the nature of his interruptions, particularly his final comments, of telling the trial

judge that “you can’t do that” and describing the court’s ultimate decision as

“ridiculous,” called into question and undermined the nature of the trial court’s

authority. In other words, his comments demonstrated an “ ‘open threat to the orderly

procedure of the court.’ ” Stegall, 1st Dist. Hamilton Nos. C-110767, C-120112 and C-

120113, 2012-Ohio-3792, at ¶ 40, quoting Oliver, 333 U.S. at 275, 68 S.Ct. 499, 92

L.Ed. 682.

{¶15} Given the nature of Mr. Felson’s conduct, and the measured $250 fine

that the court assessed, we cannot say that the trial court abused its discretion in

finding him in direct criminal contempt. We overrule Mr. Felson’s assignment of

error.

* * *

{¶16} In light of the foregoing analysis, we overrule Mr. Felson’s assignment

of error and affirm the trial court’s judgment.

Judgment affirmed.

BOCK and KINSLEY, JJ., concur.

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Please note:

The court has recorded its entry on the date of the release of this opinion.