[Cite as State v. Wheeler, 2023-Ohio-2884.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-220490 C-220491 Plaintiff-Appellee, : TRIAL NOS. 22CRB-6370A 22CRB-6370B : VS. : O P I N I O N.
EBONY WHEELER, :
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Municipal Court
Judgments Appealed From Are: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: August 18, 2023
Emily Smart Woerner, City Solicitor, William T. Horsley, Chief Prosecuting Attorney, and Ashton Tucker, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Sarah E. Nelson, Assistant Public Defender, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} Following a family dispute on Easter Sunday, defendant-appellant
Ebony Wheeler was indicted on two counts of aggravated menacing. After a bench
trial, the court found her guilty on both counts. On appeal, Ms. Wheeler argues that
her due process rights were violated by the trial court’s failure to provide an adequate
recording of the trial proceedings pursuant to Crim.R. 22, and that her aggravated
menacing convictions were not supported by sufficient evidence and ran against the
manifest weight of the evidence. The state concedes the error based on the lack of a
recording. After reviewing the record and applicable case law, we agree that the
specific facts and circumstances of these cases—viewed in light of the state’s
concession of this issue—require reversal due to the inadequate recording of the trial
proceeding. We therefore sustain Ms. Wheeler’s first assignment of error, reverse the
trial court’s judgments, and remand this cause for a new trial.
I.
{¶2} In April 2022, Ms. Wheeler hosted an Easter celebration at her home.
She invited her stepsisters, Constance Williams and Laura Wilcox, who arrived mid-
morning lugging a bottle of tequila. The two began drinking around 11 a.m. Ms.
Williams had parked her car on the neighbor’s lawn, which led to a dispute with the
neighbor. The situation grew disorderly as the tequila disappeared, with Ms. Williams
and Ms. Wilcox both exhibiting signs of extreme intoxication. Ms. Wheeler, who ran
a daycare business from her home and did not want the unruly behavior to be
associated with her or her home, attempted to mitigate the situation.
{¶3} She asked Ms. Williams and Ms. Wilcox to take their Easter meals to-
go. This request was not received well by the sisters, and a verbal confrontation
2 OHIO FIRST DISTRICT COURT OF APPEALS
ensued. The confrontation escalated, and Ms. Williams and Ms. Wilcox prepared to
fight Ms. Wheeler. Ms. Wheeler, fearing for her safety, retrieved her gun. She
demanded that the sisters leave, but they refused. Ms. Williams threatened Ms.
Wheeler, who then smacked a plate of food out of Ms. Wilcox’s hands.
{¶4} Ms. Wilcox proceeded to head to the bathroom to wash herself up, and
Ms. Wheeler followed, turning the sink water on hot to startle her. While in the
bathroom, Ms. Wheeler also grabbed Ms. Wilcox’s hair. At this point, Ms. Wilcox and
Ms. Williams claim that Ms. Wheeler pointed her gun at them, but Ms. Wheeler denies
these allegations. Following these events, Ms. Wilcox and Ms. Williams left the home,
accompanied by Ms. Wilcox’s boyfriend.
{¶5} Ms. Wheeler was charged with two counts of aggravated menacing
under R.C. 2903.21. Following a bench trial, she was found guilty. The trial court
imposed suspended sentences of 180 days and ordered six months’ nonreporting
community control, as well as anger management counseling and a stay-away order
pertaining to both Ms. Williams and Ms. Wilcox. Ms. Wheeler now appeals.
II.
{¶6} In her first assignment of error, Ms. Wheeler contends that the trial
court’s failure to record certain portions of the trial proceedings rendered an
incomplete record for purposes of appeal, thereby violating her due process rights.
Specifically, she emphasizes that the trial transcript does not include Ms. Wilcox’s
direct examination. The state, for its part, agrees that Ms. Wheeler’s convictions
should be reversed and a new trial ordered.
{¶7} Pursuant to Crim.R. 22, in petty offenses, all proceedings shall be
recorded if requested by any party. (The parties do not dispute that, as it pertains to
3 OHIO FIRST DISTRICT COURT OF APPEALS
Crim.R. 22, the offense of aggravated menacing constitutes a petty offense.) But
reversals of convictions on grounds of unrecorded proceedings will not occur in
situations where “ ‘the defendant has failed to demonstrate that (1) a request was made
at trial that the [proceedings] be recorded or that objections were made to the failures
to record, (2) an effort was made on appeal to comply with App.R. 9 and to reconstruct
what occurred or to establish its importance, and (3) material prejudice resulted from
the failure to record the proceedings at issue.’ ” City of Cleveland v. McGervey, 2022-
Ohio-3911, 200 N.E.3d 367, ¶ 21 (8th Dist.), quoting State v. Beltowski, 11th Dist. Lake
No. 2006-L-032, 2007-Ohio-3372, ¶ 14. We review this issue de novo, as it presents
a due process concern that raises a question of law. See State v. Morris, 132 Ohio St.3d
337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 16.
{¶8} First, the record on appeal does not contain a written request by either
party for the trial proceedings to be recorded. Given the deficiencies in the record, we
cannot conclude with certainty whether a request was orally made. See McGervey at
¶ 16. However, we do know that the court’s recording system was utilized during Ms.
Wheeler’s trial, but the recording was delayed and only captured part of the trial (for
reasons undisclosed by the record). Therefore, we can safely assume—consistent with
the state’s concession—that a party requested that the proceedings be recorded or
otherwise relied on an agreement that the proceedings were being recorded. See id.
(where the record did not contain a written request for the trial proceedings to be
recorded, but the court held that the record indicated an implied request for recording
in compliance with Crim.R. 22 due to the fact that the recording system was utilized
at some point after the commencement of the trial).
4 OHIO FIRST DISTRICT COURT OF APPEALS
{¶9} Turning to the second question, the Ohio Supreme Court has
recognized, “[t]he procedures outlined in App.R. 9 are designed precisely for this type
of situation, where a transcript is unavailable.” In re B.E., 102 Ohio St.3d 388, 2004-
Ohio-3361, 811 N.E.2d 76, ¶ 14. Specifically, App.R. 9(C)(1) provides a means to
reconstruct the record in the absence of a transcript:
If no recording of the proceedings was made, if a transcript is
unavailable, or if a recording was made but is no longer available for
transcription, the appellant may prepare a statement of the evidence or
proceedings from the best available means, including the appellant's
recollection. * * * The statement and any objections or proposed
amendments shall be forthwith submitted to the trial court for
settlement and approval. The trial court shall act prior to the time for
transmission of the record pursuant to App.R. 10, and, as settled and
approved, the statement shall be included by the clerk of the trial court
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[Cite as State v. Wheeler, 2023-Ohio-2884.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-220490 C-220491 Plaintiff-Appellee, : TRIAL NOS. 22CRB-6370A 22CRB-6370B : VS. : O P I N I O N.
EBONY WHEELER, :
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Municipal Court
Judgments Appealed From Are: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: August 18, 2023
Emily Smart Woerner, City Solicitor, William T. Horsley, Chief Prosecuting Attorney, and Ashton Tucker, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Sarah E. Nelson, Assistant Public Defender, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} Following a family dispute on Easter Sunday, defendant-appellant
Ebony Wheeler was indicted on two counts of aggravated menacing. After a bench
trial, the court found her guilty on both counts. On appeal, Ms. Wheeler argues that
her due process rights were violated by the trial court’s failure to provide an adequate
recording of the trial proceedings pursuant to Crim.R. 22, and that her aggravated
menacing convictions were not supported by sufficient evidence and ran against the
manifest weight of the evidence. The state concedes the error based on the lack of a
recording. After reviewing the record and applicable case law, we agree that the
specific facts and circumstances of these cases—viewed in light of the state’s
concession of this issue—require reversal due to the inadequate recording of the trial
proceeding. We therefore sustain Ms. Wheeler’s first assignment of error, reverse the
trial court’s judgments, and remand this cause for a new trial.
I.
{¶2} In April 2022, Ms. Wheeler hosted an Easter celebration at her home.
She invited her stepsisters, Constance Williams and Laura Wilcox, who arrived mid-
morning lugging a bottle of tequila. The two began drinking around 11 a.m. Ms.
Williams had parked her car on the neighbor’s lawn, which led to a dispute with the
neighbor. The situation grew disorderly as the tequila disappeared, with Ms. Williams
and Ms. Wilcox both exhibiting signs of extreme intoxication. Ms. Wheeler, who ran
a daycare business from her home and did not want the unruly behavior to be
associated with her or her home, attempted to mitigate the situation.
{¶3} She asked Ms. Williams and Ms. Wilcox to take their Easter meals to-
go. This request was not received well by the sisters, and a verbal confrontation
2 OHIO FIRST DISTRICT COURT OF APPEALS
ensued. The confrontation escalated, and Ms. Williams and Ms. Wilcox prepared to
fight Ms. Wheeler. Ms. Wheeler, fearing for her safety, retrieved her gun. She
demanded that the sisters leave, but they refused. Ms. Williams threatened Ms.
Wheeler, who then smacked a plate of food out of Ms. Wilcox’s hands.
{¶4} Ms. Wilcox proceeded to head to the bathroom to wash herself up, and
Ms. Wheeler followed, turning the sink water on hot to startle her. While in the
bathroom, Ms. Wheeler also grabbed Ms. Wilcox’s hair. At this point, Ms. Wilcox and
Ms. Williams claim that Ms. Wheeler pointed her gun at them, but Ms. Wheeler denies
these allegations. Following these events, Ms. Wilcox and Ms. Williams left the home,
accompanied by Ms. Wilcox’s boyfriend.
{¶5} Ms. Wheeler was charged with two counts of aggravated menacing
under R.C. 2903.21. Following a bench trial, she was found guilty. The trial court
imposed suspended sentences of 180 days and ordered six months’ nonreporting
community control, as well as anger management counseling and a stay-away order
pertaining to both Ms. Williams and Ms. Wilcox. Ms. Wheeler now appeals.
II.
{¶6} In her first assignment of error, Ms. Wheeler contends that the trial
court’s failure to record certain portions of the trial proceedings rendered an
incomplete record for purposes of appeal, thereby violating her due process rights.
Specifically, she emphasizes that the trial transcript does not include Ms. Wilcox’s
direct examination. The state, for its part, agrees that Ms. Wheeler’s convictions
should be reversed and a new trial ordered.
{¶7} Pursuant to Crim.R. 22, in petty offenses, all proceedings shall be
recorded if requested by any party. (The parties do not dispute that, as it pertains to
3 OHIO FIRST DISTRICT COURT OF APPEALS
Crim.R. 22, the offense of aggravated menacing constitutes a petty offense.) But
reversals of convictions on grounds of unrecorded proceedings will not occur in
situations where “ ‘the defendant has failed to demonstrate that (1) a request was made
at trial that the [proceedings] be recorded or that objections were made to the failures
to record, (2) an effort was made on appeal to comply with App.R. 9 and to reconstruct
what occurred or to establish its importance, and (3) material prejudice resulted from
the failure to record the proceedings at issue.’ ” City of Cleveland v. McGervey, 2022-
Ohio-3911, 200 N.E.3d 367, ¶ 21 (8th Dist.), quoting State v. Beltowski, 11th Dist. Lake
No. 2006-L-032, 2007-Ohio-3372, ¶ 14. We review this issue de novo, as it presents
a due process concern that raises a question of law. See State v. Morris, 132 Ohio St.3d
337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 16.
{¶8} First, the record on appeal does not contain a written request by either
party for the trial proceedings to be recorded. Given the deficiencies in the record, we
cannot conclude with certainty whether a request was orally made. See McGervey at
¶ 16. However, we do know that the court’s recording system was utilized during Ms.
Wheeler’s trial, but the recording was delayed and only captured part of the trial (for
reasons undisclosed by the record). Therefore, we can safely assume—consistent with
the state’s concession—that a party requested that the proceedings be recorded or
otherwise relied on an agreement that the proceedings were being recorded. See id.
(where the record did not contain a written request for the trial proceedings to be
recorded, but the court held that the record indicated an implied request for recording
in compliance with Crim.R. 22 due to the fact that the recording system was utilized
at some point after the commencement of the trial).
4 OHIO FIRST DISTRICT COURT OF APPEALS
{¶9} Turning to the second question, the Ohio Supreme Court has
recognized, “[t]he procedures outlined in App.R. 9 are designed precisely for this type
of situation, where a transcript is unavailable.” In re B.E., 102 Ohio St.3d 388, 2004-
Ohio-3361, 811 N.E.2d 76, ¶ 14. Specifically, App.R. 9(C)(1) provides a means to
reconstruct the record in the absence of a transcript:
If no recording of the proceedings was made, if a transcript is
unavailable, or if a recording was made but is no longer available for
transcription, the appellant may prepare a statement of the evidence or
proceedings from the best available means, including the appellant's
recollection. * * * The statement and any objections or proposed
amendments shall be forthwith submitted to the trial court for
settlement and approval. The trial court shall act prior to the time for
transmission of the record pursuant to App.R. 10, and, as settled and
approved, the statement shall be included by the clerk of the trial court
in the record on appeal.
{¶10} In this case, the transcript of proceedings of Ms. Wheeler’s bench trial
begins with the cross-examination of Ms. Wilcox. Ms. Wilcox’s direct testimony was
not transcribed by virtue of the failure to record the start of the trial. Pursuant to
App.R. 9(E), the trial court adopted a stipulated set of facts in an attempt to complete
the record. But despite the inclusion of these facts, the trial court certified that the
record remained incomplete and could not be completed. Ms. Wheeler has therefore
demonstrated that an effort was made on appeal to comply with App.R. 9.
{¶11} Third and finally, we address Ms. Wheeler’s claims of material
prejudice. This “he said/she said” case hinged entirely on witness credibility, so the
5 OHIO FIRST DISTRICT COURT OF APPEALS
omission of Ms. Wilcox’s direct examination from the transcript undermines Ms.
Wheeler’s ability to present her arguments on appeal. As the state acknowledges in its
brief, Ms. Wheeler is therefore deprived of the opportunity to substantively contest
critical aspects of her case on appeal, sufficing to establish material prejudice.
{¶12} In light of the foregoing analysis—particularly acknowledging the state’s
concession as well as the trial court’s finding that the record was incomplete and could
not be rectified by App.R. 9—we sustain Ms. Wheeler’s first assignment of error. Ms.
Wheeler is entitled to a new trial at which the trial court complies with the mandates
of Crim.R. 22.
* * *
{¶13} In light of the foregoing analysis, we sustain Ms. Wheeler’s first
assignment of error, reverse the trial court’s judgments, and remand this cause for a
new trial consistent with this opinion and the law. Her remaining assignments of error
are moot and we decline to address them. See App.R. 12(A)(1)(c).
Judgments reversed and cause remanded.
ZAYAS, P.J., and BOCK, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.