[Cite as Sunbury v. Sullivan, 2011-Ohio-6119.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
: JUDGES: THE VILLAGE OF SUNBURY, OHIO : Sheila G. Farmer, P.J. : John W. Wise, J. Plaintiff-Appellee : Julie A. Edwards, J. : -vs- : Case No. 11CAC030025 : : GARY M. SULLIVAN : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Civil Appeal from Delaware Municipal Court Case No. 10-TRC-07891
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 22, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
PETER B. RUFFING JOHN R. CORNELY Prosecuting Attorney 21 Middle Street 70 N. Union Street P.O. Box 248 Delaware, Ohio 43015 Galena, Ohio 43021-0248 [Cite as Sunbury v. Sullivan, 2011-Ohio-6119.]
Edwards, J.
{¶ 1} Defendant-appellant, Gary Sullivan, appeals his conviction and sentence
from the Delaware Municipal Court on one count each of use of unauthorized (fictitious)
plates, driving under an OVI suspension, operating a vehicle while under the influence
of alcohol and refusing a chemical test, and driving under an FRA suspension. Plaintiff-
appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶ 2} On August 17, 2010, a complaint was filed charging appellant with driving
under the influence of alcohol or drugs and refusing a chemical test in violation of R.C.
4511.19(A)(2), operating a motor vehicle while under an OVI suspension in violation of
R.C. 4510.14(A), use of unauthorized (fictitious) license plates in violation of R.C.
4549.08(A), driving under an FRA suspension in violation of R.C. 4510.16, and having
no valid operator’s license in violation of R.C. 4510.12. The complaint indicated that
appellant had five (5) prior OVIs. Appellant entered a plea of not guilty to the charges.
{¶ 3} A jury trial was held on February 8, 2011. On such date, a joint stipulation
was filed stating that the parties agreed that appellant had been convicted of OVI on
May 27, 2008 in another case, that appellant’s driver’s license has been suspended for
10 years and was under suspension on August 16, 2010 and that, on August 16, 2010,
appellant was not permitted to drive.
{¶ 4} At the conclusion of the evidence and the end of deliberations, the jury, on
February 8, 2011, found appellant guilty of use of unauthorized (fictitious) plates, driving
under an OVI suspension, and operating a vehicle while under the influence of alcohol
and refusing a chemical test. The trial court convicted appellant of driving under an 3
FRA suspension and found appellant not guilty of having no operator’s license. As
memorialized in a Judgment Entry filed on February 8, 2011, appellant was sentenced
to an aggregate sentence of 250 days in jail. The trial court also fined appellant, ordered
that his driver’s license be suspended for a period of 10 years and placed him on
community control for a period of five years.
{¶ 5} Appellant now raises the following assignments of error on appeal:
{¶ 6} “I. THE TRIAL COURT ERRED IN DENYING MR. SULLIVAN’S
CRIMINAL RULE 29 MOTION FOR ACQUITTAL ON THE OVI CHARGE AS THE
EVIDENCE WAS INSUFFICIENT TO CONVICT HIM.
{¶ 7} “II. MR. SULLIVAN’S CONVICTION FOR OVI IS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 8} “III. THE MISCONDUCT OF THE PROSECUTING ATTORNEY IN
ARGUING HIS PERSONAL BELIEFS REGARDING MR. SULLIVAN’S CREDIBILITY IN
CLOSING ARGUMENTS DENIED MR. SULLIVAN HIS RIGHT TO A FAIR TRIAL.
{¶ 9} “IV. COUNSEL FOR MR. SULLIVAN WAS INEFFECTIVE AS THE
RESULT OF HIS CUMULATIVE ERRORS AND THIS DENIED MR. SULLIVAN A FAIR
TRIAL UNDER THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS OF THE
UNITED STATES CONSTITUTION AND THE OHIO CONSTITUTION.”
{¶ 10} At all relevant times, App.R. 9 provided1 as follows:
{¶ 11} “(A) Composition of the record on appeal
{¶ 12} “* * * A videotape recording of the proceedings constitutes the transcript of
proceedings other than hereinafter provided, and, for purposes of filing, need not be
transcribed into written form. Proceedings recorded by means other than videotape 1 App.R. 9 was amended effective July 1, 2011. The amendments are not relevant to this case. 4
must be transcribed into written form. When the written form is certified by the reporter
in accordance with App.R. 9(B), such written form shall then constitute the transcript of
proceedings. When the transcript of proceedings is in the videotape medium, counsel
shall type or print those portions of such transcript necessary for the court to determine
the questions presented, certify their accuracy, and append such copy of the portions of
the transcripts to their briefs.” (Emphasis added).
{¶ 13} The duty to provide a transcript for appellate review falls upon the
appellant. This is necessarily so because an appellant bears the burden of showing
error by reference to matters in the record. See, State v. Skaggs, (1978), 53 Ohio St.2d
162, 372 N.E.2d 1355. This principle is recognized in App. R. 9(B), which provides, in
part, that “* * * the appellant shall in writing order from the reporter a complete transcript
or a transcript of such parts of proceedings not already on file as he deems necessary
for inclusion in the record * * *.”
{¶ 14} Accordingly, if the transcript of proceedings is in the videotape medium,
the appellant must type or print those portions of the transcript necessary for the
appellate court to determine the questions presented, certify their accuracy, and append
such copy of the portions of the transcript to his or her brief.
{¶ 15} In the case sub judice, appellant, on March 7, 2011, issued a precipe to
the Clerk of Courts asking that it issue a copy of the “video recording of the entire trial
and sentencing.” The videotape of the trial was never filed with the record on appeal.
Appellant appended selected typed copies of pages of the videotaped transcript to his
brief. However, appellant has failed, contrary to the mandates of App.R. 9(A) and 9(B),
to provide us with a properly certified, typed or printed transcription of relevant 5
videotaped testimony presented in the proceedings below. As noted by this Court in
State v. Huffman (June 16, 1994), Delaware App. No. 93-CAC-06022, 1994 WL
313750, in regard to an appellant's counsel's responsibility to transcribe and certify the
accuracy of a transcription of a videotape:
{¶ 16} “* * * We interpret said language to mean that counsel who generates the
typewritten portions must ‘certify’ their accuracy. Neither counsel have done that in the
instant case. Even if all counsel to an appeal agreed that the portion of the video tape
transcribed was accurate, such agreement would be insufficient in the absence of a
formal certification to its accuracy by them.” See also State v. Voiers, (Oct. 19, 2001),
Ottawa App. No. OT-01-017, 2001 WL 1260766, and State v. Feazel, (July 17, 2000),
Delaware App. No. 00CA01001, 2000 WL 987261.
{¶ 17} We note that appellate review of a denied motion for acquittal and whether
the verdict is against manifest weight of the evidence necessitate consideration of the
evidence adduced at trial. See, Ruta v. Breckenridge-Remy Co. (1982), 69 Ohio St.2d
66, 430 N.E.2d 935; McRoberts v. Value City, Inc. (Sept. 23, 1987), Hamilton App. No.
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[Cite as Sunbury v. Sullivan, 2011-Ohio-6119.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
: JUDGES: THE VILLAGE OF SUNBURY, OHIO : Sheila G. Farmer, P.J. : John W. Wise, J. Plaintiff-Appellee : Julie A. Edwards, J. : -vs- : Case No. 11CAC030025 : : GARY M. SULLIVAN : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Civil Appeal from Delaware Municipal Court Case No. 10-TRC-07891
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 22, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
PETER B. RUFFING JOHN R. CORNELY Prosecuting Attorney 21 Middle Street 70 N. Union Street P.O. Box 248 Delaware, Ohio 43015 Galena, Ohio 43021-0248 [Cite as Sunbury v. Sullivan, 2011-Ohio-6119.]
Edwards, J.
{¶ 1} Defendant-appellant, Gary Sullivan, appeals his conviction and sentence
from the Delaware Municipal Court on one count each of use of unauthorized (fictitious)
plates, driving under an OVI suspension, operating a vehicle while under the influence
of alcohol and refusing a chemical test, and driving under an FRA suspension. Plaintiff-
appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶ 2} On August 17, 2010, a complaint was filed charging appellant with driving
under the influence of alcohol or drugs and refusing a chemical test in violation of R.C.
4511.19(A)(2), operating a motor vehicle while under an OVI suspension in violation of
R.C. 4510.14(A), use of unauthorized (fictitious) license plates in violation of R.C.
4549.08(A), driving under an FRA suspension in violation of R.C. 4510.16, and having
no valid operator’s license in violation of R.C. 4510.12. The complaint indicated that
appellant had five (5) prior OVIs. Appellant entered a plea of not guilty to the charges.
{¶ 3} A jury trial was held on February 8, 2011. On such date, a joint stipulation
was filed stating that the parties agreed that appellant had been convicted of OVI on
May 27, 2008 in another case, that appellant’s driver’s license has been suspended for
10 years and was under suspension on August 16, 2010 and that, on August 16, 2010,
appellant was not permitted to drive.
{¶ 4} At the conclusion of the evidence and the end of deliberations, the jury, on
February 8, 2011, found appellant guilty of use of unauthorized (fictitious) plates, driving
under an OVI suspension, and operating a vehicle while under the influence of alcohol
and refusing a chemical test. The trial court convicted appellant of driving under an 3
FRA suspension and found appellant not guilty of having no operator’s license. As
memorialized in a Judgment Entry filed on February 8, 2011, appellant was sentenced
to an aggregate sentence of 250 days in jail. The trial court also fined appellant, ordered
that his driver’s license be suspended for a period of 10 years and placed him on
community control for a period of five years.
{¶ 5} Appellant now raises the following assignments of error on appeal:
{¶ 6} “I. THE TRIAL COURT ERRED IN DENYING MR. SULLIVAN’S
CRIMINAL RULE 29 MOTION FOR ACQUITTAL ON THE OVI CHARGE AS THE
EVIDENCE WAS INSUFFICIENT TO CONVICT HIM.
{¶ 7} “II. MR. SULLIVAN’S CONVICTION FOR OVI IS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 8} “III. THE MISCONDUCT OF THE PROSECUTING ATTORNEY IN
ARGUING HIS PERSONAL BELIEFS REGARDING MR. SULLIVAN’S CREDIBILITY IN
CLOSING ARGUMENTS DENIED MR. SULLIVAN HIS RIGHT TO A FAIR TRIAL.
{¶ 9} “IV. COUNSEL FOR MR. SULLIVAN WAS INEFFECTIVE AS THE
RESULT OF HIS CUMULATIVE ERRORS AND THIS DENIED MR. SULLIVAN A FAIR
TRIAL UNDER THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS OF THE
UNITED STATES CONSTITUTION AND THE OHIO CONSTITUTION.”
{¶ 10} At all relevant times, App.R. 9 provided1 as follows:
{¶ 11} “(A) Composition of the record on appeal
{¶ 12} “* * * A videotape recording of the proceedings constitutes the transcript of
proceedings other than hereinafter provided, and, for purposes of filing, need not be
transcribed into written form. Proceedings recorded by means other than videotape 1 App.R. 9 was amended effective July 1, 2011. The amendments are not relevant to this case. 4
must be transcribed into written form. When the written form is certified by the reporter
in accordance with App.R. 9(B), such written form shall then constitute the transcript of
proceedings. When the transcript of proceedings is in the videotape medium, counsel
shall type or print those portions of such transcript necessary for the court to determine
the questions presented, certify their accuracy, and append such copy of the portions of
the transcripts to their briefs.” (Emphasis added).
{¶ 13} The duty to provide a transcript for appellate review falls upon the
appellant. This is necessarily so because an appellant bears the burden of showing
error by reference to matters in the record. See, State v. Skaggs, (1978), 53 Ohio St.2d
162, 372 N.E.2d 1355. This principle is recognized in App. R. 9(B), which provides, in
part, that “* * * the appellant shall in writing order from the reporter a complete transcript
or a transcript of such parts of proceedings not already on file as he deems necessary
for inclusion in the record * * *.”
{¶ 14} Accordingly, if the transcript of proceedings is in the videotape medium,
the appellant must type or print those portions of the transcript necessary for the
appellate court to determine the questions presented, certify their accuracy, and append
such copy of the portions of the transcript to his or her brief.
{¶ 15} In the case sub judice, appellant, on March 7, 2011, issued a precipe to
the Clerk of Courts asking that it issue a copy of the “video recording of the entire trial
and sentencing.” The videotape of the trial was never filed with the record on appeal.
Appellant appended selected typed copies of pages of the videotaped transcript to his
brief. However, appellant has failed, contrary to the mandates of App.R. 9(A) and 9(B),
to provide us with a properly certified, typed or printed transcription of relevant 5
videotaped testimony presented in the proceedings below. As noted by this Court in
State v. Huffman (June 16, 1994), Delaware App. No. 93-CAC-06022, 1994 WL
313750, in regard to an appellant's counsel's responsibility to transcribe and certify the
accuracy of a transcription of a videotape:
{¶ 16} “* * * We interpret said language to mean that counsel who generates the
typewritten portions must ‘certify’ their accuracy. Neither counsel have done that in the
instant case. Even if all counsel to an appeal agreed that the portion of the video tape
transcribed was accurate, such agreement would be insufficient in the absence of a
formal certification to its accuracy by them.” See also State v. Voiers, (Oct. 19, 2001),
Ottawa App. No. OT-01-017, 2001 WL 1260766, and State v. Feazel, (July 17, 2000),
Delaware App. No. 00CA01001, 2000 WL 987261.
{¶ 17} We note that appellate review of a denied motion for acquittal and whether
the verdict is against manifest weight of the evidence necessitate consideration of the
evidence adduced at trial. See, Ruta v. Breckenridge-Remy Co. (1982), 69 Ohio St.2d
66, 430 N.E.2d 935; McRoberts v. Value City, Inc. (Sept. 23, 1987), Hamilton App. No.
C-860855, 1987 WL 17263, unreported. In the absence of a properly certified and
submitted transcription of the relevant portions of the proceedings below necessary to
our examination of the evidence presented at trial, we are compelled to presume the
validity of the lower court's determination. Knapp v. Edwards Laboratories (1980) 61
Ohio St.2d 197, 199, 400 N.E.2d 384. See also State v. Moyer, Montgomery App. No.
22672, 2009-Ohio-1642 and Feazel, supra. 6
{¶ 18} Appellant’s four assignments of error are, therefore, overruled.
{¶ 19} Accordingly, the judgment of the Delaware Municipal Court is affirmed.
By: Edwards, J.
Farmer, P.J. and
Wise, J. concur
______________________________
JUDGES [Cite as Sunbury v. Sullivan, 2011-Ohio-6119.]
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
THE VILLAGE OF SUNBURY, OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : GARY M. SULLIVAN : : Defendant-Appellant : CASE NO. 11CAC030025
For the reasons stated in our accompanying Memorandum-Opinion on file, the
appeal of the Delaware Municipal Court is affirmed. Costs assessed to appellant.
_________________________________
JUDGES