[Cite as State v. Findler, 2021-Ohio-449.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-190606 TRIAL NO. 19TRD-34133 Plaintiff-Appellee, :
vs. : O P I N I O N. JOSEPH P. FINDLER :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: February 19, 2021
Andrew Garth, City Solicitor, William T. Horsely, Chief Prosecuting Attorney, and Ashton L. Tucker, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Joseph P. Findler, pro se. OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} Defendant-appellant Joseph P. Findler was convicted of speeding in
violation of Cincinnati Municipal Code 506-8. He has appealed, arguing in four
assignments of error that the trial court erred (1) by not conducting an evidentiary
hearing on the state’s motion to quash his subpoena, (2) by granting the motion to
quash, (3) by making and admitting hearsay statements, and (4) by improperly
restricting the scope of cross-examination and demonstrating bias against him and
in favor of the state.
{¶2} We overrule all assignments of error and affirm the judgment of the
trial court.
Factual Background
{¶3} Cincinnati Police Officer Bryan Dettmer testified that on September
13, 2019, he recorded Findler driving 76 m.p.h. in a 55-m.p.h. zone on Interstate 75
in Cincinnati, Ohio. He initiated a traffic stop and cited Findler for speeding.
{¶4} Prior to trial, Findler filed a subpoena requesting that Dettmer
“produce any mobile phone or tablet with content relating to Findler viewed,
processed, or participated in by Dettmer prior to or during the encounter with
Findler, including social media accounts such as Facebook and Google.” The state
moved to quash the subpoena. The trial court, without conducting an evidentiary
hearing, granted the motion to quash. After a bench trial, Findler was convicted of
speeding.
2 OHIO FIRST DISTRICT COURT OF APPEALS
First Assignment of Error
{¶5} In his first assignment of error, Findler argues that the trial court erred
by not conducting an evidentiary hearing prior to granting the state’s motion to
quash. Findler cites Cincinnati v. Neff, 1st Dist. Hamilton No. C-130411, 2014-Ohio-
2026, and In re Subpoena Duces Tecum Served upon Attorney Potts, 100 Ohio St.3d
97, 2003-Ohio-5234, 796 N.E.2d 915, in support.
{¶6} Neff involved an interlocutory appeal by a third party of an order
denying a motion to quash. Neff at ¶ 7. This court held, “When deciding a motion to
quash a subpoena under Crim.R. 17, the trial court must conduct an evidentiary
hearing.” Id. at ¶ 8, citing In re Subpoena Duces Tecum Served upon Attorney Potts
at paragraph one of the syllabus. This court went on to state:
At the hearing, the proponent of the subpoena bears the burden of
demonstrating that the subpoena is not unreasonable or oppressive by
showing (1) that the subpoenaed documents are evidentiary and relevant;
(2) that they are not otherwise reasonably procurable in advance of trial
by due diligence; (3) that the proponent cannot properly prepare for trial
without production and inspection of the documents and that the failure
to obtain the documents may tend to unreasonably delay the trial, and (4)
that the subpoena is made in good faith and not intended as a general
“fishing expedition.”
Neff at ¶ 8; see United States v. Nixon, 418 U.S. 683, 699-700, 94 S.Ct. 3090, 41
L.Ed.2d 1039 (1974).
{¶7} In Neff, although the trial court “conducted oral argument with respect
to the subpoena, it did not receive sworn testimony or other material of evidentiary
3 OHIO FIRST DISTRICT COURT OF APPEALS
value,” and so did not meet the requirements of an evidentiary hearing. Neff at ¶ 9.
This court remanded for the trial court to conduct an evidentiary hearing on the
motion to quash. Id. at ¶ 10.
{¶8} Neither Neff nor Potts involved a direct appeal resulting from a final
judgment in a criminal case. Rather, they involved an interlocutory appeal and an
ancillary criminal contempt conviction, respectively. See Neff at ¶ 7; Potts at ¶ 6.
Several Ohio courts have distinguished those types of appeals from appeals from a
final judgment and carved out an exception to the Potts rule where the trial court’s
failure to hold an evidentiary hearing was harmless.
{¶9} In Miamisburg v. Rinderle, 2d Dist. Montgomery No. 26094, 2015-
Ohio-351, ¶ 18, the defendant, on direct appeal following a conviction, alleged that
the trial court had erred in failing to hold an evidentiary hearing before granting the
state’s motion to quash. The defendant had subpoenaed the prosecutor to testify in
order to ensure that the prosecutor had provided full discovery. Id. at ¶ 20. The
Second District held that although the trial court did not hold an evidentiary hearing,
the error was harmless because the defendant’s subpoena was clearly improper. Id. It
described the subpoena as a “fishing expedition” and “a shotgun accusation that
maybe you haven’t received all of the discovery.” Id.
{¶10} In State v. Bennett, 2019-Ohio-4937, 149 N.E.3d 1045, ¶ 85 (3d Dist.),
the Third District upheld the trial court’s order quashing the defendant’s subpoena
despite the fact that the trial court did not conduct an evidentiary hearing. The court
noted that multiple appellate courts have “addressed interlocutory appeals on this
issue” and remanded for the trial court to conduct a hearing. Id. at ¶ 80. However,
4 OHIO FIRST DISTRICT COURT OF APPEALS
fewer appeals exist where a trial court has quashed a subpoena, or denied
a motion to quash a subpoena, without a hearing and the matter
proceeded all the way to a final judgment, which was then appealed. Even
Potts dealt with an ancillary matter, it was not a direct appeal in the
criminal case resulting from a final judgment. Thus despite its bright-line
rule that appears applicable on its face, Potts is not an entirely analogous
set of circumstances.
Id. at ¶ 81.
{¶11} Relying on the Second District’s decision in Rinderle, the Third
District held:
While a hearing should be held under Potts, where the record
demonstrates that subpoena plainly has no merit, and would have no
impact on the trial whatsoever that already occurred, we will not go so far
as to overturn the entire trial or remand the matter to the trial court to
have a superfluous hearing. This is particularly true where this case does
not involve an interlocutory or third-party appeal.
Id. at ¶ 85; see State v. Myers, 12th Dist. Madison No. CA2019-01-003, 2020-Ohio-
59, ¶ 21-22 (following Bennett and holding that the trial court’s failure to hold an
evidentiary hearing on the motion to quash was harmless).
{¶12} The present case involves a direct appeal following a final judgment of
conviction in a bench trial. In response to the state’s argument that his subpoena
was irrelevant and should be quashed, Findler stated, “I believe it’s relevant –
obviously I have the ability to impeach each witness by prejudice. I intend to
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[Cite as State v. Findler, 2021-Ohio-449.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-190606 TRIAL NO. 19TRD-34133 Plaintiff-Appellee, :
vs. : O P I N I O N. JOSEPH P. FINDLER :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: February 19, 2021
Andrew Garth, City Solicitor, William T. Horsely, Chief Prosecuting Attorney, and Ashton L. Tucker, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Joseph P. Findler, pro se. OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} Defendant-appellant Joseph P. Findler was convicted of speeding in
violation of Cincinnati Municipal Code 506-8. He has appealed, arguing in four
assignments of error that the trial court erred (1) by not conducting an evidentiary
hearing on the state’s motion to quash his subpoena, (2) by granting the motion to
quash, (3) by making and admitting hearsay statements, and (4) by improperly
restricting the scope of cross-examination and demonstrating bias against him and
in favor of the state.
{¶2} We overrule all assignments of error and affirm the judgment of the
trial court.
Factual Background
{¶3} Cincinnati Police Officer Bryan Dettmer testified that on September
13, 2019, he recorded Findler driving 76 m.p.h. in a 55-m.p.h. zone on Interstate 75
in Cincinnati, Ohio. He initiated a traffic stop and cited Findler for speeding.
{¶4} Prior to trial, Findler filed a subpoena requesting that Dettmer
“produce any mobile phone or tablet with content relating to Findler viewed,
processed, or participated in by Dettmer prior to or during the encounter with
Findler, including social media accounts such as Facebook and Google.” The state
moved to quash the subpoena. The trial court, without conducting an evidentiary
hearing, granted the motion to quash. After a bench trial, Findler was convicted of
speeding.
2 OHIO FIRST DISTRICT COURT OF APPEALS
First Assignment of Error
{¶5} In his first assignment of error, Findler argues that the trial court erred
by not conducting an evidentiary hearing prior to granting the state’s motion to
quash. Findler cites Cincinnati v. Neff, 1st Dist. Hamilton No. C-130411, 2014-Ohio-
2026, and In re Subpoena Duces Tecum Served upon Attorney Potts, 100 Ohio St.3d
97, 2003-Ohio-5234, 796 N.E.2d 915, in support.
{¶6} Neff involved an interlocutory appeal by a third party of an order
denying a motion to quash. Neff at ¶ 7. This court held, “When deciding a motion to
quash a subpoena under Crim.R. 17, the trial court must conduct an evidentiary
hearing.” Id. at ¶ 8, citing In re Subpoena Duces Tecum Served upon Attorney Potts
at paragraph one of the syllabus. This court went on to state:
At the hearing, the proponent of the subpoena bears the burden of
demonstrating that the subpoena is not unreasonable or oppressive by
showing (1) that the subpoenaed documents are evidentiary and relevant;
(2) that they are not otherwise reasonably procurable in advance of trial
by due diligence; (3) that the proponent cannot properly prepare for trial
without production and inspection of the documents and that the failure
to obtain the documents may tend to unreasonably delay the trial, and (4)
that the subpoena is made in good faith and not intended as a general
“fishing expedition.”
Neff at ¶ 8; see United States v. Nixon, 418 U.S. 683, 699-700, 94 S.Ct. 3090, 41
L.Ed.2d 1039 (1974).
{¶7} In Neff, although the trial court “conducted oral argument with respect
to the subpoena, it did not receive sworn testimony or other material of evidentiary
3 OHIO FIRST DISTRICT COURT OF APPEALS
value,” and so did not meet the requirements of an evidentiary hearing. Neff at ¶ 9.
This court remanded for the trial court to conduct an evidentiary hearing on the
motion to quash. Id. at ¶ 10.
{¶8} Neither Neff nor Potts involved a direct appeal resulting from a final
judgment in a criminal case. Rather, they involved an interlocutory appeal and an
ancillary criminal contempt conviction, respectively. See Neff at ¶ 7; Potts at ¶ 6.
Several Ohio courts have distinguished those types of appeals from appeals from a
final judgment and carved out an exception to the Potts rule where the trial court’s
failure to hold an evidentiary hearing was harmless.
{¶9} In Miamisburg v. Rinderle, 2d Dist. Montgomery No. 26094, 2015-
Ohio-351, ¶ 18, the defendant, on direct appeal following a conviction, alleged that
the trial court had erred in failing to hold an evidentiary hearing before granting the
state’s motion to quash. The defendant had subpoenaed the prosecutor to testify in
order to ensure that the prosecutor had provided full discovery. Id. at ¶ 20. The
Second District held that although the trial court did not hold an evidentiary hearing,
the error was harmless because the defendant’s subpoena was clearly improper. Id. It
described the subpoena as a “fishing expedition” and “a shotgun accusation that
maybe you haven’t received all of the discovery.” Id.
{¶10} In State v. Bennett, 2019-Ohio-4937, 149 N.E.3d 1045, ¶ 85 (3d Dist.),
the Third District upheld the trial court’s order quashing the defendant’s subpoena
despite the fact that the trial court did not conduct an evidentiary hearing. The court
noted that multiple appellate courts have “addressed interlocutory appeals on this
issue” and remanded for the trial court to conduct a hearing. Id. at ¶ 80. However,
4 OHIO FIRST DISTRICT COURT OF APPEALS
fewer appeals exist where a trial court has quashed a subpoena, or denied
a motion to quash a subpoena, without a hearing and the matter
proceeded all the way to a final judgment, which was then appealed. Even
Potts dealt with an ancillary matter, it was not a direct appeal in the
criminal case resulting from a final judgment. Thus despite its bright-line
rule that appears applicable on its face, Potts is not an entirely analogous
set of circumstances.
Id. at ¶ 81.
{¶11} Relying on the Second District’s decision in Rinderle, the Third
District held:
While a hearing should be held under Potts, where the record
demonstrates that subpoena plainly has no merit, and would have no
impact on the trial whatsoever that already occurred, we will not go so far
as to overturn the entire trial or remand the matter to the trial court to
have a superfluous hearing. This is particularly true where this case does
not involve an interlocutory or third-party appeal.
Id. at ¶ 85; see State v. Myers, 12th Dist. Madison No. CA2019-01-003, 2020-Ohio-
59, ¶ 21-22 (following Bennett and holding that the trial court’s failure to hold an
evidentiary hearing on the motion to quash was harmless).
{¶12} The present case involves a direct appeal following a final judgment of
conviction in a bench trial. In response to the state’s argument that his subpoena
was irrelevant and should be quashed, Findler stated, “I believe it’s relevant –
obviously I have the ability to impeach each witness by prejudice. I intend to
introduce that and basically the purposes for the stop and the manner of execution
5 OHIO FIRST DISTRICT COURT OF APPEALS
during the stop, and that’s why I intend to introduce that into evidence during cross-
examination of the witness.”
{¶13} During cross-examination of Dettmer, Findler questioned Dettmer
about whether he had viewed information on social media, prior to the traffic stop,
regarding Findler being stopped for speeding in Tennessee, and whether he
specifically targeted Findler’s vehicle as a result. Dettmer testified that he had never
met Findler prior to the traffic stop and that he had not viewed any information
about Findler on social media.
{¶14} There is nothing in the record to indicate that Dettmer possessed any
evidence relevant to Findler’s defense. Findler’s subpoena was a “fishing expedition”
for potential impeachment evidence. See Bennett, 2019-Ohio-4937, 149 N.E.3d 1045,
at ¶ 86. We find that Findler’s subpoena was plainly without merit, and the outcome
of the trial would not have been different if the court had conducted an evidentiary
hearing on the motion to quash. See Bennett at ¶ 85. The first assignment of error is
overruled.
Second Assignment of Error
{¶15} In his second assignment of error, Findler contends that the trial court
erred by granting the motion to quash the subpoena. We apply an abuse-of-
discretion standard to a trial court’s decision concerning a motion to quash a
subpoena. State v. Beck, 2016-Ohio-8122, 75 N.E.3d 899, ¶ 23 (1st Dist.).
{¶16} Having determined that the subpoena was plainly improper under the
first assignment of error, we hold that the trial court did not abuse its discretion in
quashing the subpoena. The second assignment of error is overruled.
6 OHIO FIRST DISTRICT COURT OF APPEALS
Third Assignment of Error
{¶17} In his third assignment of error, Findler contends that the trial court
committed plain error by making and admitting hearsay statements that violated his
confrontation rights under the Sixth Amendment to the United States Constitution.
{¶18} Findler argues that some of the trial judge’s own statements
constituted hearsay. “ ‘Hearsay’ is a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” Evid.R. 801(C). The trial judge is not a witness or party. The
statements made by the judge were not “offered in evidence.” Therefore, they did not
constitute hearsay. The third assignment of error is overruled.
Fourth Assignment of Error
{¶19} In his fourth assignment of error, Findler contends that the trial court
improperly restricted the scope of cross-examination and demonstrated bias against
him and in favor of the state. He argues that those errors, combined with the other
errors alleged, amounted to cumulative error and deprived him of a fair trial.
{¶20} The state contends that this court lacks jurisdiction to consider
Findler’s judicial-bias claim. We have held that a court of appeals has no “authority”
or “jurisdiction” to decide the matter of disqualification of a judge for bias or
prejudice. See State v. Carter, 1st Dist. Hamilton No. C-170655, 2019-Ohio-1749, ¶
17. However, this court has recognized a distinction between a claim of judicial bias
relating to “the formal process used to remove a judge from hearing a case because
the judge has an interest in the matter or is prejudiced in favor of one party,” and a
claim relating to “when a judge’s conduct in overseeing a case prevents a party from
receiving a fair trial.” See State v. Loudermilk, 2017-Ohio-7378, 96 N.E.3d 1037, ¶ 17
7 OHIO FIRST DISTRICT COURT OF APPEALS
(1st Dist.). An appellate court has “the authority to review a claim of judicial bias as it
impacts the outcome of the case.” Id. at ¶ 19.
{¶21} Findler’s claim is of the second variety. He argues that the trial court’s
conduct during the trial deprived him of a fair trial. “Judicial bias is demonstrated
by ‘a hostile feeling or spirit of ill will or undue friendship or favoritism toward one of
the litigants or his attorney, with the formation of a fixed anticipatory judgment on
the part of the judge, as contradistinguished from an open state of mind which will
be governed by the law and the facts.’ ” Loudermilk at ¶ 21, quoting State ex rel.
Pratt v. Weygandt, 164 Ohio St. 463, 132 N.E.2d 191 (1956), paragraph four of the
syllabus.
{¶22} A review of the record shows that, although the trial court should have
conducted an evidentiary hearing on the motion to quash, its failure to do so was not
the result of “ill will” toward Findler or “favoritism” toward the state, nor is there any
indication that its decision was preordained. As discussed above, Findler’s subpoena
was plainly without merit.
{¶23} We find there was no indication of bias in the court’s restriction of
Findler’s cross-examination of Dettmer. Findler repeatedly attempted to ask a
question that had already been answered. The court gave Findler opportunities to
rephrase before telling him that he would not be allowed to ask that question again.
Findler then declined to ask any more questions.
{¶24} Findler has failed to demonstrate cumulative error. The fourth
assignment of error is overruled.
8 OHIO FIRST DISTRICT COURT OF APPEALS
Conclusion
{¶25} We overrule all assignments of error and affirm the judgment of the
Judgment affirmed.
BERGERON, P.J., and WINKLER, J., concur.
Please note: The court has recorded its own entry on the date of the release of this opinion.