[Cite as Parma v. Kannenberg , 2014-Ohio-5681.] 

# Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100370

CITY OF PARMA

PLAINTIFF-APPELLEE

vs. CARLEEN M. KANNENBERG

DEFENDANT-APPELLANT

JUDGMENT:

AFFIRMED

Criminal Appeal from the

Parma Municipal Court Case Nos. 12-CRB-03175, 12-CRB-03215, 12-CRB-03457, and 12-CRB-04794

BEFORE: Celebrezze, P.J., Keough, J., and Stewart, J.

RELEASED AND JOURNALIZED: December 24, 2014ATTORNEY FOR APPELLANT

Paul A. Daher Paul A. Daher & Associates 700 W. St. Clair Avenue Suite 218 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE Timothy G. Dobeck Parma Law Director 6611 Ridge Road Parma, Ohio 44129

Richard A. Neff Assistant Prosecuting Attorney City of Parma Law Department 5555 Powers Boulevard Parma, Ohio 44129

FRANK D. CELEBREZZE, JR., P.J.:{¶1} Appellant Carleen M. Kannenbe rg appeals her convictions in the Parma Municipal Court for disorderly conduct, tr espassing, open burning, and viola tion of a temporary protection order that resulted from a dispute with a neig hbor. She argues that her convictions are unsupported by sufficient evidence and are against th e manifest weight of the evidence. After a thorough review of the reco rd and law, we affirm. I. Factual and Procedural History {¶2} Gary and Kim Geyer lived at a home on Pleasant Valley Road in Parma, Ohio, for 22 years. In late 2011, appella nt moved into a home next door. Problems arose between the Geyers and appellant in the early summer of 2012. Ongoing issues resulted in a number of criminal citations over the next year. {¶3} The Geyers, concerned about the behavior they witnessed, sought an ex parte temporary protection order (“ TPO”) by filing a motion with the Cuyahoga County Common Pleas Court. That request was granted on June 21, 2012. A hearing was scheduled on the motion for July 2, 2012. Service of the order was not accomplished on a ppellant until June 26,

2012. {¶4} On June 23, 2012, Kim Geyer called the police with a noise complaint at approximately 6:45 a.m. A Parma police officer responded, arrested a ppellant, and issued a citation for disorderly conduct at 7:16 a.m. Appellant posted bond and wa s released. The case was prosecuted as Parma M.C. No. 12-CRB-03175. {¶5} On June 26, 2012, Kim Geyer requested Parm a police to respond three times. The first incident resulted in appella nt being cited for disturbing th e peace at 1:08 p.m. At that time, the officer served appellant with an official c opy of the ex parte TPO obtained by the Geyers. The police issued a second citation for criminal trespass in violati on of a protection order at 2:05p.m. The third time the police responded, no citati on was issued, but appe llant was transported to the hospital for evaluation. These cita tions were prosecuted under Parma M.C. No.

12-CRB-03215. {¶6} On July 5, 2012, Parma police again responded to a complaint from Kim Geyer. At 11:01 p.m., appellant was arrested and issued a citation for disord erly conduct while intoxicated. She was also issued a citation for open burning after the fire department put out a fire in a fire pit in her backyard twice. This case wa s prosecuted under Parma M.C. No. 12-CRB-03457. {¶7} A criminal complaint was filed in the Parma Municipal Court on September 14, 2012, charging appellant with viol ating a protection order. It was assigned Parma M.C. No.

12-CRB-04794. {¶8} On March 11, 2013, appellant’s be havior resulted in anothe r citation for violating a temporary restraining order. This was assigned Parma M.C. 13-CRB-01256. 1 All cases were

consolidated for trial. {¶9} A bench trial commenced on J une 5, 2013. Kim Geyer testifie d first for the city of Parma (the “City”). She testified that she gr ew up in the house she now lives in with her husband. They bought the house 22 years ago from K im’s parents. She te stified that problems began in the early summer of 2012 between her and her neighbor, appella nt. She described appellant’s behavior as bizarre and threatening. This included loud music and screaming threats, cursing, and doing things purposefully to annoy them. Kim testified that, as a result, she and her husband Gary sought and obtained a TPO, initially ex parte, on June 21, 2012, and then after a hearing on July 2, 2012.

1 Appellant was found not guilty of this charge and this case is not part of the present appeal.{¶10} Kim testified that on June 23, 2012, appellant was in her backyard in the early morning playing loud music and shouting obscenities. She was arrested and cited for disorderly conduct by Parma police officer Mike Yonek. He testified to hearing l oud music and appellant screaming obscenities on arrival. {¶11} Kim also called the police complainin g of loud noise on June 26, 2012. She testified that appe llant was playing loud music and shoutin g obscenities in the late morning. Parma police officer James Manzo responded. He testified that, upon arri val, he heard loud music from down the street and heard appellant shouting obscenities. He issued a citation for disturbing the peace. {¶12} Kim testified that she had to call the police again a little while later that same day because appellant was in the Geyer’s yard staring menacingly in front of the Geyer’s large picture window at the front of their house and tossing an object up and down as if threatening to throw it through the window. Officer Manzo responded a nd reviewed video surveillance footage from the Geyer’s home security system that documented this behavior. He issu ed appellant a citation for trespassing and hand delivered a copy of the temporary protection order. He advised appellant to stay off the Geyer’s property. {¶13} Kim further testified that appellant’s beha vior was disturbing and resulted in yet another call to the police for help that day. According to her, appellant was then transported to the hospital for evaluation. Parma police officer Thomas J. Kugler also testified to appellant’s strange behavior and that she wa s transported to the hospital. {¶14} Kim next testified about a July 5, 2012 inci dent when appellant was having a small party. Appellant had lit a fire in a fire pit that was of concern to Kim due to a previous out-of-control fire originating from the same place. This previous fire had burned out of controland burned items on Kim’s property, including trees and gra ss and damaged her house. Police and fire personnel responded. Th e fire department extinguishe d the fire, and the responding officer issued a warning to appe llant about open burning. Within a few minutes of the officers leaving, appellant restarted the fire. Kim again called to report it. The fire department again extinguished the fire, and appella nt was cited for open burning. She was then arrested for disorderly conduct while voluntarily intoxicated by responding officer Robert Curtin. He testified that appe llant would not calm down after he issued the citation and continued to shout obscenities at him after warning her to stop. {¶15} Kim testified that after th is, appellant was quiet until September 13, 2012. On that day, appellant was out in her yard playing l oud music and shouting obscenities at the Geyers. After the police observed video and audio evidence of appellant yelling at the Geyers and making rude gestures at them, Officer Kugler issued a citation for violating a TPO. {¶16} According to Kim, even this citation did not end the behavior. She testified that appellant would park her car in her driveway next to the Geyer’s home so that she could see directly into the Geyer’s living room. Appellant would then sit in the car and stare at them.

This behavior and video recordin gs of appellant stepping on th e Geyer’s property prompted the Parma police to issue an additional citation for violating a temporary pr otection order in March 2013. Parma police officer Eric Dougan testifie d that he responded to calls from Kim and reviewed surveillance video time-stamped Ma rch 7 and March 11, 2013, which documented the

behavior. He issued a citati on for violation of the TPO. {¶17} Gary Geyer and friends of the Geyers, Te rry Hess and Renee Ga han, also testified to observing the odd behavior of appellant and hearing threats appellant uttered.{¶18} At the close of the City’s case, the trial court granted appellant’s Crim.R. 29 motion in part. The judge found that the City had not demonstrated that appellant was intoxicated during the July 5, 2012 incident that resulted in a citation for disorderly conduct while voluntarily intoxicated. The court deni ed the motion as to the other charges. {¶19} Appellant called severa l witnesses in her defense. First, Terry Rhodes testified that he grew up next door to Kim Geyer in the hous e currently occupied by appellant. He stated that he bought the house from his siblings after th eir parents died. He rented the house to John Sworchek, and appellant lives in the house with John. Rhodes also testified that his girlfriend, Cheryl Kilbane, has a daughter that is married to Keith Geyer, the Geyer’s son, and that they are currently going through a divorce. {¶20} Missy Toth, Rhodes’s half-sister, also testified on behalf of appellant. She testified that she paid a visit to the house o ccupied by appellant on June 26, 2012, and observed the odd behavior of appellant that resulted in appellant being transported to the hospital. She also testified that she realized this is the type of behavior that Kim had to put up with every day. {¶21} Finally, appellant testified. She stated that the Geyers were always calling the police on her for nothing and that Kim hated Terry Rhodes and that is why all of this happened. She explained that she was never cursing at th e Geyer’s, but that she was on her phone in her backyard exchanging hostile words with her ex-husband. {¶22} The judge took the matter under considera tion and set forth the verdicts on the record on June 17, 2013. The cour t found appellant guilty of a ll remaining counts except theMarch 2013 violation of a TPO. However, the journal entries that resulted from each case did not accurately reflect what occurred — some indicated appellant pled guilty. 2 {¶23} The trial court sentenced appellant on July 24, 2013. In 12-CRB-03794, she was sentenced to 30 days in jail with 27 days susp ended and credit for thr ee days; subpoena costs suspended; fined $250 with $175 in costs suspende d; and three years of probation. Appellant received a $10 fine for open burning in 12- CRB-03457, with court costs suspended. In 12-CRB-3175, appellant received a 30- day jail term with 27 days su spended and credit for three days; $250 in costs with $175 suspended. In 12-CRB-03215, for criminal trespass and disturbing the peace, she received a 10-day jail term with 10 days suspended as well as three-years probation. She wa s fined $250 with $200 suspended as well as subpoena costs suspended. For disturbing the p eace, she was fined $20 in costs. {¶24} For violating a TPO in 12-CRB-04794, she received a 180-day jail sentence with 90 days suspended and 90 days deferred pending a mental hea lth evaluation. A fine of $1,000 was also imposed with $900 suspe nded, and three years of probation. 3 Appellant then filed the instant appeal raising two assignments of error.

I. The evidence is insufficient to sustain Appellant’s convictions. II. Appellant’s convictions are against the manifest weight of the evidence. II. Law and Analysis A. Sufficiency

2 Some journal entries still indicate that appellant pled guilty even after this court remanded the cases twice for correction, but appellant is not raising any argument about the accuracy of the entries.

3 The journal entries in these cases are confusing, wr ong, and contradictory. The entries in some cases indicate that appellant pled guilty to charges when, in fact, she was found guilty after a bench trial. One entry indicates that a sentence of 90 days was deferred until a certain date. In order to be a final order, this court interprets this order to mean that, on that date, appellant was to serve her jail term even though this may not be the trial court’s intention, as expressed in the transcript.{¶25} Appellant first claims he r convictions are unsupported by sufficient evidence. {¶26} When reviewing the sufficiency of the evidence to support a criminal conviction, “[t]he relevant inquiry is whet her, after viewing the evidence in a light most favorable to the prosecution, any rational trier of f act could have found the essentia l elements of the crime proven beyond a reasonable doubt.” State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. The evidence must be examined in a light most favorable to the

state. {¶27} Appellant was convicted of disturbing the peace, disorderly conduct, criminal trespass, open burning, and vi olating a protection order. {¶28} Disorderly conduct is defined under Pa rma Codified Ordi nance (“P.C.O.”) 648.04(a), in pertinent part as follows: “No person shall recklessly cause inconvenience, annoyance or alarm to another, by * * * (2) Ma king unreasonable noise or offensively coarse utterance, gesture or display, or communicating unwarranted and grossly abusive language to any person * * *.” {¶29} Appellant argues “the facts do not suppor t disorderly conduct” because she “was outside yelling obscenities and singing in her backyard” where she was “merely exercising her First Amendment Right and was not harming the Geyers * * *.” {¶30} Disorderly conduct proscriptions can ha ve the undesired effect of chilling constitutionally protected speech. Therefore, the Ohio Supreme Cour t set forth a required analysis when interpreting whether certain sp eech violates a disorder ly conduct statute or

ordinance. State v. Hoffman , 57 Ohio St.2d 129, 387 N.E.2d 239 ( 1979), paragraph one of the syllabus (“A person may not be punished [for diso rderly conduct] * * * for ‘recklessly caus[ing] inconvenience, annoyance, or alarm to another,’ by making an ‘offensively coarse utterance’ or‘communicating unwarranted and grossly abusive language to any person,’ unless the words spoken are likely, by their very utterance, to in flict injury or provoke the average person to an immediate retaliatory breach of the peace”). However, this applies only where the subject of the speech has prompted governmental sanction, not the manner of speech. Fairborn v. Grills , 2d Dist. Greene No. 92 CA 92, 1994 Ohio App. LEXIS 2467 (June 8, 1994). [W]hen the disorderly conduct statute, or the identical * * * City Ordinance, is being enforced as to the content of the defendant’s language, the trial court must apply a First Amendment analysis to ensure that the defendant’s right to free speech is not being infringed. However, this analysis is not necessary when the defendant is charged with disorderly conduct based solely upon the manner of his speech.

* * * Where there is no evidence that the content of the defendant’s speech was restricted by the enfor cement of the disorderly conduct ordinance regulating unreasonable noise, the First Amendment an alysis for content restrictions on speech is unnecessary, and the use of figh ting words is not an element of the offense. Accordingly, Fairborn is permitted to stop people from yelling incessantly and thereby disturbing the peace in a residential area.

Id. at *5. See also Warrensville Hts. v. Brown , 8th Dist. Cuyahoga No. 89346, 2008-Ohio-126, ¶ 12; State v. Cunningham , 10th Dist. Franklin No. 06AP-145, 2006-Ohio-6373, ¶ 22. {¶31} Here, appellant was convict ed of disorderly conduct on June 23, 2012, for making unreasonable noise at approximate ly 7:00 a.m. by playing loud music and screaming. The police officer testified that he issued the cita tion when he observed appellant playing loud music and shouting obscenities early in the morning in a residential neighborhood. The content of her speech, while offensive to neighbors, is immaterial to the issuance of the citation in this case. It was the manner of speech — excessive and unreasonable noise early in the morning — that prompted the citation.{¶32} Appellant was convicted of disturbing the peace on June 26, 2012. Disturbing the peace is defined in P.C.O. 648.05(a): No person shall disturb the good order and quiet of the Municipality by clamors or noises, by intoxication, drunkenness, fi ghting, quarreling, wrangling, committing assault, assault and battery , using obscene or profane language in the streets and other public places to the annoyance of th e citizens, or otherwise violate the public peace by indecent and disorderly conduct, or by lewd and lascivious behavior. {¶33} Appellant claims that her actions of playing excessively loud music and shouting obscenities are not the kinds of actions punishab le under the ordinance. “The offense of ‘disturbing the peace’ has been understood, from its common law origin up to the present, to include a wide variety of conduc t which destroys or threatens public order and tranquility.”

State v. Cole , 7th Dist. Mahoning No. 01 CA 73, 2002-Ohio-5191, ¶ 20, citing United States v.

Woodard , 376 F.2d 136, 141 (7th Cir.1967). To deter mine whether some conduct breaches this standard, courts look to what w ould be disturbing to a reasona ble person viewing the surrounding

facts and circumstances. Id

. {¶34} Kim Geyer testified she heard extrem ely loud music that was coming from appellant’s backyard and that she could clearly make out the words being sung from inside her home with the windows shut. The responding officer testified that he could clearly hear the music from as far away as the main cross-street some distance away. Contrary to appellant’s argument, this is the type of behavior meant to be criminalized by the statute. {¶35} Again, appellant argues that she was merely exercising her First Amendment rights by playing music. However, the ordinance at issue here does not limit a person’s speech; it limits the manner of that speech — specifically, its volume. Appellant ’s conduct constituted adisturbance of the peace where she played music so loud that it coul d be heard at the end of the

block. {¶36} Appellant was also convicted of criminal trespass for her actions on June 26, 2012. Criminal trespass is defined in P.C.O. 642.12( a)(1) in pertinent pa rt: “No person, without privilege to do so, shall * * * [k]nowingly enter or remain on the land or pr emises of another * *

*.” {¶37} Appellant argues that there is no eviden ce of any trespass because the surveillance video viewed by the police when determining whet her to issue a citation was not shown at trial and the property boundary was in dispute. Appe llant agues that the lack of video evidence requires reversal. This argument ignores the testimony of Kim Geyer. Her testimony establishes that appella nt knowingly entered onto the Geyers ’ property. She testified that appellant was standing in front of a window that overlooked th e Geyers’ front lawn throwing an object up and down. Kim testified this was clearly on her property. Viewing this evidence in a light favorable to the state, all the elements of criminal trespass we re adduced at trial. {¶38} Appellant was also convicted of open burning from her actions on July 5, 2012. Open burning is defined in pertinent part in P.C.O. 660.46(c): “No pe rson or property owner shall cause or allow open burning in a restricted area except as provided in divisions (b) to (d) of

this section or in Ohio R.C. 3704.11.” 4 P.C.O. 660.46(a)(1)(I) defines “open burning” as the burning of any materials wherein air contaminants resulting from combustion are emitted directly into the ambient ai r without passing through a stack or chimney. “Open burning” includes the bur ning of any refuse or salvageable material in any device not subject to or designed specifically to comply with the requirements of O.A. C. 3745-17-09 or 3745-17-10.

4 There are exceptions set forth in P.C.O. 660.46(c)(2) not argued to be relevant here.{¶39} Appellant claims there is insufficient evidence for this conviction because the police officer who issued the citation did not see the fire. The Parma police officer who issued

the citation arrived on the scene after the fire department had extinguis hed the fire the second

time. {¶40} Again, this ignores the testimony of Kim Geyer. She testified that appellant relit the fire within moments of the fire and police department personne l departing after extinguishing

the first fire. {¶41} Finally, appellant wa s convicted of violating a protection order. P.C.O. 636.045(c)(1) provides: “No person sha ll recklessly violate the terms of any of the following: (A) [a] protection order issued or consent agr eement approved pursuant to Ohio R.C. 2919.26 or Ohio R.C. 3113.31; (B) [a] protection order issued pursuant to Ohio R.C. 2903.213 or Ohio R.C.

2903.214 * * *.” {¶42} Appellant’s claim here again relies on the fact that the police officer who issued the citation did not personally observe any wrongdoing, and the surveillance video viewed by the officer was not produced and played at trial. This ignores the testimony of Kim and Gary Geyer, who both testified that appellant, fully aware of the TPO, yelled obscenities and directed rude gestures at the Geyers. Surveillance video of this conduct was duplicativ e of testimony adduced

at trial. {¶43} The TPO had a no-contact order, which wa s violated according to the testimony adduced at trial. Therefore, ther e is sufficient evidence for conviction.

B. Manifest Weight {¶44} Appellant also claims that her convictions are against th e manifest weight of the

evidence.{¶45} In reviewing a claim that a verdict is against the manifest weight of the evidence, this court considers the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witne sses and, in considerin g conflicts in the evidence, determines whether the trier of fact clearly lost its way and created such a manifest miscarriage of justice that

the conviction must be revers ed and a new trial ordered. State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). In doing so, we remain mindful that the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. This gives the trier of fact the authority to “believe or disbelieve any witness or accept part of what a witness says and reject the rest.” State v. Antill , 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964). The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. Thompkins at 387. {¶46} Reviewing the weight of the evidence produced at trial, the trial court did not lose its way in convicting appe llant of the above crimes. Appellant’s menacing and disturbing actions, as set forth by Kim Geyer, were corroborated by the testimony of Parma police officers in a few instances. The testimony of other witn esses also documente d this behavior. {¶47} Appellant claims that the Geyers’ compla ints are the oversensitive reactions of people who have animosity for her landlord. The July 26, 2012 timeline of events documents

how that is not the case. After a visit from th e police prompted by a ppellant’s extremely loud music, appellant was observed by Kim in the Geyers’ front yard me nacing them. This prompted a second call to the police and a second citation. The same evening, additional odd behavior designed to annoy the Geyers resulted in a third call. The police then transported appellant to the hospital for evaluation. The Geyers were not the only ones to tes tify about appellant’sharassing and annoying behavior on that day. Kim’s testimony was corroborated by the responding police officers and the la ndlord’s half-sister. As a resu lt, the weight of the evidence supports these convictions.

III. Conclusion {¶48} Appellant’s convictions for disorderly conduct, disturbing the peace, criminal trespass, open burning, and violating a TPO ar e supported by sufficient evidence and are not against the manifest weight of the evidence. {¶49} Judgment affirmed. It is ordered that appellee recove r from appellant costs herein taxed.

The court finds there were reas onable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Parma Municipal Court to carry this judgment into execution. Th e defendant’s convictions having been affirmed, any bail pending appeal is ter minated. Case remanded to the trial court for execution of

sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appella te Procedure.

FRANK D. CELEBREZZE, JR., PRESIDING JUDGE KATHLEEN ANN KEOUGH, J., and MELODY J. STEWART, J., CONCUR