[Cite as State v. Riddlebarger, 2024-Ohio-5356.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 21CA011785
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE ROBERT RIDDLEBARGER LORAIN MUNICIPAL COURT COUNTY OF LORAIN, OHIO Appellant CASE No. 2020CRB01298
DECISION AND JOURNAL ENTRY
Dated: November 12, 2024
HENSAL, Judge.
{¶1} Robert Riddlebarger appeals his conviction for domestic violence by the Lorain
Municipal Court. For the following reasons, this Court reverses Mr. Riddlebarger’s conviction.
I.
{¶2} Following a trial to the bench on charges of domestic violence and obstructing
official business, the municipal court found Mr. Riddlebarger guilty of the domestic violence
offense and sentenced him to 30 days in jail, which it suspended. Mr. Riddlebarger has appealed
his conviction, assigning as error that the municipal court failed to provide an adequate record of
the proceedings.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED BY FAILING TO PROVIDE AN ADEQUATE RECORDING OF THE TRIAL COURT PROCEEDINGS IN VIOLATION OF APPELLANT’S CONSTITUTIONAL DUE PROCESS RIGHTS. 2
{¶3} In his assignment of error, Mr. Riddlebarger argues that a transcript of the trial
cannot be prepared, which violates his due process rights. He has submitted an affidavit by the
trial court’s official court reporter who stated that it is very difficult to hear parts of the trial and
that she could not hear the judge or accusing witness clearly at times. She also stated that, if she
prepared a transcript, it would result in many “inaudible” lines. At best, she would only be able to
accurately transcribe “random snippets of words, but not complete sentences or whole
conversations.” The words that she could transcribe would be “completely devoid of context and
the substance of what was being said.” Given the materials, she did not believe there was anything
more she could do to produce a transcript. The State, however, argues that Mr. Riddlebarger could
have prepared a statement of the evidence under Appellate Rule 9(C), which he did not pursue.
{¶4} Revised Code Section 2953.02 “provides a right to appeal a judgment or final order
to the court of appeals.” State v. Patrick, 2020-Ohio-6803, ¶ 16. “An accurate transcript is the
lynch pin of appellate review.” State v. Cunningham, 1993 WL 97713, *4 (4th Dist. Apr. 2, 1993).
Sometimes, a transcript and record can be “so inadequate as to render appellate review impossible
and [a] defendant’s right to appeal meaningless.” Id.
{¶5} Rule 9(A)(2) provides that “[t]he trial court shall ensure that all proceedings of
record are recorded by a reliable method[.]” Rule 9(B)(4) provides that, “[i]f no recording was
made, or when a recording was made but is no longer available for transcription, App. R. 9(C) or
9(D) may be utilized.” The rule goes on to provide, however, that, “[i]f the appellant intends to
present an assignment of error on appeal that a finding or conclusion is unsupported by the
evidence or is contrary to the weight of the evidence, the appellant shall include in the record a
transcript of proceedings that includes all evidence relevant to the findings or conclusion.” Mr.
Riddlebarger argues that, because a transcript of the trial cannot be produced, he has been deprived 3
of the ability to challenge the sufficiency and manifest weight of the evidence. Mr. Riddlebarger
also submitted an affidavit by his trial counsel who stated that, because of his heavy caseload and
the passage of time, he could only remember that the complaining witness alleged that Mr.
Riddlebarger strangled her after she threw a coffee cup at him. Mr. Riddlebarger, however,
testified that he grabbed the complainant by the neck to defend himself.
{¶6} Upon review of the record, we conclude that it is inadequate to conduct a
meaningful review of Mr. Riddlebarger’s conviction. See Cleveland v. McGervey, 2022-Ohio-
3911, ¶ 25 (8th Dist.). As Mr. Riddlebarger has noted, without a transcript of the testimony, it is
impossible for him to obtain appellate review of whether there is sufficient evidence to support his
conviction or whether his conviction is against the manifest weight of the evidence. We note that
Mr. Riddlebarger has moved to supplement the record with the audio recording of the trial, which
we grant. The recording supports the court reporter’s affidavit. The beginning of the trial up to
the first witness is almost completely inaudible. Although questions to the complaining witness
are mostly audible, her answers are not.
{¶7} In Knapp v. Edwards Laboratories, 61 Ohio St.2d 197 (1980), the Ohio Supreme
Court addressed a situation in which a court reporter was unable to provide a transcript because of
a prolonged illness. The Court determined that, because there was no impropriety by the appellant,
it would be inappropriate to simply affirm the judgment of the trial court. Id. at 200. On the other
hand, it also concluded that the appellant was not entitled to a new trial because of the
unavailability of the transcript. Id. Instead, it concluded that the case should be remanded to the
trial court, which had “[s]everal options.” Id. It noted that the court reporter may have recovered
and would be able to prepare a transcript. Alternatively, the appellant would have “the opportunity
to provide the court with an App.R. 9(C) narrative transcript” or the parties might “reach an agreed 4
statement of the case pursuant to App.R. 9(D).” Id. It also wrote that, “only after all reasonable
solutions to this problem are exhausted” should the trial court consider granting a new trial.
{¶8} In State v. Jones, 71 Ohio St.3d 293 (1994), Mr. Jones was granted a delayed
appeal, but the notes of the court reporter had been destroyed in the interim. Mr. Jones filed a
statement under Rule 9(C), but the State objected to it. Mr. Jones then filed a motion for new trial,
but the trial court denied it and determined that it could not settle a 9(C) statement. Mr. Jones,
thereafter, appealed the denial of his motion for new trial.
{¶9} The Ohio Supreme Court noted that a trial court may hold an evidentiary hearing
to settle a record and that Rule 9(E) provides a procedure to correct or modify a record. Id. at 297.
It also explained that an “appellant is entitled to a new trial where, after an evidentiary hearing, a
record cannot be settled and it is determined that the appellant is not at fault.” Id. at 298. It,
therefore, remanded the case to the trial court to hold an evidentiary hearing to determine whether
Mr. Jones was “substantially responsible for nonproduction of the record” and “proceed
accordingly.” Id. at 298-299.
{¶10} Under Knapp and Jones, it may appear that the appropriate remedy would be for
this Court to remand the matter to the trial court so that it may determine whether the record can
be settled or order a new trial, if necessary. The Ohio Supreme Court has recently clarified,
however, that Ohio courts of appeals have only three options when entering judgment. State v.
Jones, 2024-Ohio-2719, ¶ 16-20. Specifically, under Rule 12(A), a court of appeals may “affirm,
modify, or reverse the judgment or final order appealed . . . .” Id. at ¶ 16, quoting App.R.
12(A)(1)(a). The Court vacated a “limited remand” that the First District Court of Appeals had
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[Cite as State v. Riddlebarger, 2024-Ohio-5356.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 21CA011785
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE ROBERT RIDDLEBARGER LORAIN MUNICIPAL COURT COUNTY OF LORAIN, OHIO Appellant CASE No. 2020CRB01298
DECISION AND JOURNAL ENTRY
Dated: November 12, 2024
HENSAL, Judge.
{¶1} Robert Riddlebarger appeals his conviction for domestic violence by the Lorain
Municipal Court. For the following reasons, this Court reverses Mr. Riddlebarger’s conviction.
I.
{¶2} Following a trial to the bench on charges of domestic violence and obstructing
official business, the municipal court found Mr. Riddlebarger guilty of the domestic violence
offense and sentenced him to 30 days in jail, which it suspended. Mr. Riddlebarger has appealed
his conviction, assigning as error that the municipal court failed to provide an adequate record of
the proceedings.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED BY FAILING TO PROVIDE AN ADEQUATE RECORDING OF THE TRIAL COURT PROCEEDINGS IN VIOLATION OF APPELLANT’S CONSTITUTIONAL DUE PROCESS RIGHTS. 2
{¶3} In his assignment of error, Mr. Riddlebarger argues that a transcript of the trial
cannot be prepared, which violates his due process rights. He has submitted an affidavit by the
trial court’s official court reporter who stated that it is very difficult to hear parts of the trial and
that she could not hear the judge or accusing witness clearly at times. She also stated that, if she
prepared a transcript, it would result in many “inaudible” lines. At best, she would only be able to
accurately transcribe “random snippets of words, but not complete sentences or whole
conversations.” The words that she could transcribe would be “completely devoid of context and
the substance of what was being said.” Given the materials, she did not believe there was anything
more she could do to produce a transcript. The State, however, argues that Mr. Riddlebarger could
have prepared a statement of the evidence under Appellate Rule 9(C), which he did not pursue.
{¶4} Revised Code Section 2953.02 “provides a right to appeal a judgment or final order
to the court of appeals.” State v. Patrick, 2020-Ohio-6803, ¶ 16. “An accurate transcript is the
lynch pin of appellate review.” State v. Cunningham, 1993 WL 97713, *4 (4th Dist. Apr. 2, 1993).
Sometimes, a transcript and record can be “so inadequate as to render appellate review impossible
and [a] defendant’s right to appeal meaningless.” Id.
{¶5} Rule 9(A)(2) provides that “[t]he trial court shall ensure that all proceedings of
record are recorded by a reliable method[.]” Rule 9(B)(4) provides that, “[i]f no recording was
made, or when a recording was made but is no longer available for transcription, App. R. 9(C) or
9(D) may be utilized.” The rule goes on to provide, however, that, “[i]f the appellant intends to
present an assignment of error on appeal that a finding or conclusion is unsupported by the
evidence or is contrary to the weight of the evidence, the appellant shall include in the record a
transcript of proceedings that includes all evidence relevant to the findings or conclusion.” Mr.
Riddlebarger argues that, because a transcript of the trial cannot be produced, he has been deprived 3
of the ability to challenge the sufficiency and manifest weight of the evidence. Mr. Riddlebarger
also submitted an affidavit by his trial counsel who stated that, because of his heavy caseload and
the passage of time, he could only remember that the complaining witness alleged that Mr.
Riddlebarger strangled her after she threw a coffee cup at him. Mr. Riddlebarger, however,
testified that he grabbed the complainant by the neck to defend himself.
{¶6} Upon review of the record, we conclude that it is inadequate to conduct a
meaningful review of Mr. Riddlebarger’s conviction. See Cleveland v. McGervey, 2022-Ohio-
3911, ¶ 25 (8th Dist.). As Mr. Riddlebarger has noted, without a transcript of the testimony, it is
impossible for him to obtain appellate review of whether there is sufficient evidence to support his
conviction or whether his conviction is against the manifest weight of the evidence. We note that
Mr. Riddlebarger has moved to supplement the record with the audio recording of the trial, which
we grant. The recording supports the court reporter’s affidavit. The beginning of the trial up to
the first witness is almost completely inaudible. Although questions to the complaining witness
are mostly audible, her answers are not.
{¶7} In Knapp v. Edwards Laboratories, 61 Ohio St.2d 197 (1980), the Ohio Supreme
Court addressed a situation in which a court reporter was unable to provide a transcript because of
a prolonged illness. The Court determined that, because there was no impropriety by the appellant,
it would be inappropriate to simply affirm the judgment of the trial court. Id. at 200. On the other
hand, it also concluded that the appellant was not entitled to a new trial because of the
unavailability of the transcript. Id. Instead, it concluded that the case should be remanded to the
trial court, which had “[s]everal options.” Id. It noted that the court reporter may have recovered
and would be able to prepare a transcript. Alternatively, the appellant would have “the opportunity
to provide the court with an App.R. 9(C) narrative transcript” or the parties might “reach an agreed 4
statement of the case pursuant to App.R. 9(D).” Id. It also wrote that, “only after all reasonable
solutions to this problem are exhausted” should the trial court consider granting a new trial.
{¶8} In State v. Jones, 71 Ohio St.3d 293 (1994), Mr. Jones was granted a delayed
appeal, but the notes of the court reporter had been destroyed in the interim. Mr. Jones filed a
statement under Rule 9(C), but the State objected to it. Mr. Jones then filed a motion for new trial,
but the trial court denied it and determined that it could not settle a 9(C) statement. Mr. Jones,
thereafter, appealed the denial of his motion for new trial.
{¶9} The Ohio Supreme Court noted that a trial court may hold an evidentiary hearing
to settle a record and that Rule 9(E) provides a procedure to correct or modify a record. Id. at 297.
It also explained that an “appellant is entitled to a new trial where, after an evidentiary hearing, a
record cannot be settled and it is determined that the appellant is not at fault.” Id. at 298. It,
therefore, remanded the case to the trial court to hold an evidentiary hearing to determine whether
Mr. Jones was “substantially responsible for nonproduction of the record” and “proceed
accordingly.” Id. at 298-299.
{¶10} Under Knapp and Jones, it may appear that the appropriate remedy would be for
this Court to remand the matter to the trial court so that it may determine whether the record can
be settled or order a new trial, if necessary. The Ohio Supreme Court has recently clarified,
however, that Ohio courts of appeals have only three options when entering judgment. State v.
Jones, 2024-Ohio-2719, ¶ 16-20. Specifically, under Rule 12(A), a court of appeals may “affirm,
modify, or reverse the judgment or final order appealed . . . .” Id. at ¶ 16, quoting App.R.
12(A)(1)(a). The Court vacated a “limited remand” that the First District Court of Appeals had
ordered and remanded “the case to the court of appeals for it to comply with App.R. 12 by entering
a judgment that affirms, modifies or reverses the trial court’s judgment[.]” Id. at ¶ 20. 5
{¶11} As previously explained, Mr. Riddlebarger has established that he has been
prejudiced by the inadequacy of the trial recording. Because we do not have the same flexibility
as the Ohio Supreme Court did in Knapp and Jones in ordering relief, we conclude that we must
reverse the judgment of the trial court and remand this matter for a new trial. Mr. Riddlebarger’s
assignment of error is sustained.
III.
{¶12} Mr. Riddlebarger’s assignment of error is sustained. The judgment of the Lorain
Municipal Court is reversed, and this matter 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 Lorain Municipal
Court, 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 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. 6
Costs taxed to Appellee.
JENNIFER HENSAL FOR THE COURT
SUTTON, J. CONCURS.
STEVENSON. P. J. DISSENTING.
{¶13} I respectfully dissent from the majority decision in this case. I feel the correct
procedure to follow when the trial court record may be incomplete was outlined in Knapp v
Edwards Laboratories, 61 Ohio St.2d 197 (1980) and State v Jones, 71 Ohio St.3d 293 (1994),
and that this Court should remand the matter to the trial court to follow that procedure. I do not
find that remand is inappropriate under State v Jones, 2024-Ohio-2719 and App.R. 12 because,
unlike in Jones, 2024-Ohio-2719, we are not able to reach the merits of Mr. Riddlebarger’s appeal
because we have an incomplete record through apparent no fault of the appellant.
{¶14} Following Knapp and Jones, 71 Ohio St.3d 293, I believe the proper remedy in
cases with an incomplete record is to remand the matter to the trial court to see if a proper record
can be made under App.R. 9(C) or 9(D). In this case, Mr. Riddlebarger attempted to correct the
record in this Court and not the trial court. App.R. 9(C), (D), and (E) contemplate the trial court’s
input in approving any attempted record created in the absence of a transcript, so Knapp correctly
found record issues should be remanded to the trial court to review. Knapp at 200. In reviewing
the question of whether a record can be completed, the trial court should determine if the lack of a
record is the fault of the defendant pursuant to Jones. Jones, 71 Ohio St.3d at 298-299. If so, the 7
trial court should not grant a new trial. If a record cannot be completed at no fault of Mr.
Riddlebarger, the trial court may have to order a new trial as the only available remedy. Appellants
should file the appropriate motions in the trial court in the first instance, and not in the Court of
Appeals as Mr. Riddlebarger has done in this case.
{¶15} Lastly, I find it necessary to distinguish our recent case, State v Pappas, 2021-Ohio-
2915 (9th Dist.), from the result in this matter. In Pappas, the record was incomplete and a portion
of a witness’s testimony was missing. Id. at ¶ 11. The appellant raised an assignment of error
regarding the sufficiency of the evidence and this Court overruled that assignment, finding that
with an incomplete record a reviewing court presumes regularity of the proceedings. Id. at ¶ 12.
It appears in Pappas that the appellant did not raise the issue of the incomplete transcript or attempt
to supplement the record. If a party does not attempt to correct the record pursuant to App.R. 9 or
otherwise bring the error in the record to a reviewing court’s attention, a reviewing court is left
with no choice but to presume the regularity of the proceedings and affirm the trial court’s decision.
{¶16} For these reasons, I respectfully dissent from the majority opinion.
APPEARANCES:
STEPHEN P. HANUDEL, Attorney at Law, for Appellant.
MALLORY SANTIAGO, Attorney at Law, for Appellee.