[Cite as State v. Getzinger, 2013-Ohio-2146.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

HENRY COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 7-12-06 

 v. 

NICHOLAS B. GETZINGER, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Napoleon Municipal Court 

Trial Court No. 10 TRD 238 

Judgment Affirmed 

Date of Decision: May 28, 2013 

 

APPEARANCES: 

George C. Rogers for Appellant 

Paul A. Skaaff for Appellee 
Case No. 7-12-06 

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SHAW, J. 

{¶1} Defendant-appellant, Nicholas B. Getzinger (“Getzinger”), appeals the 

March 22, 2012 judgment of the Napoleon Municipal Court finding Getzinger 

guilty of disorderly conduct and sentencing him to pay a fine of $150.00. 

{¶2} On July 14, 2011, a criminal complaint was filed against Getzinger 

alleging he committed disorderly conduct in violation of R.C. 2917.11(A)(2). The 

complaint specifically alleged that Getzinger “did recklessly cause inconvenience, 

annoyance, or alarm to another, by making unreasonable noise or an offensively 

coarse utterance, gesture, or display or communicating unwarranted and grossly 

abusive language to any person.” (Doc. No. 9). Notably, the complaint recited 

verbatim the language of the statute. See R.C. 2917.11(A)(2). Getzinger 

subsequently pleaded not guilty to the charge. 

{¶3} On August 29, 2011, Getzinger filed a motion to dismiss the 

complaint. Specifically, Getzinger asserted that the complaint omitted an essential 

“element” of the offense by failing to allege that the language used by Getzinger 

rose to the level of “fighting words.” In particular, Getzinger argued that the 

complaint must have also alleged that the “words by their utterance, are likely to 

inflict injury or provoke an immediate retaliating breach of the peace,” which is 

the legal standard for “fighting words.” See In re T.W., 3d Dist. No. 1-12-16, 

2012-Ohio-5938, ¶ 21, citing Cincinnati v. Karlan, 39 Ohio St.2d 107, 109–110 
Case No. 7-12-06 

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(1974)(setting forth the standard for identifying “fighting words”). Getzinger 

argued that because the complaint omitted the “fighting words” language, it was 

constitutionality infirm because it failed to state all the essential elements of the 

offense and thus also failed to comply with the notice requirements of Crim.R. 3. 

(Doc. No. 12). The trial court took this motion under advisement and proceeded 

to trial. 

{¶4} On October 13, 2011, a trial to the court was held. At the conclusion 

of the evidence, the trial court gave the parties seven days to file briefs with the 

court regarding Getzinger’s motion to dismiss. 

{¶5} On November 15, 2011, the trial court overruled Getzinger’s motion 

to dismiss finding that the complaint tracked the language of R.C. 2917.11(A)(2) 

and was not defective for failing to include the additional “fighting words” 

language. In the same judgment entry the trial court also found that “the State met 

its burden of proof beyond a reasonable doubt on each and every element of the 

offense charged”. (JE, Nov. 15, 2011 at 3). 

{¶6} On December 22, 2011, the trial court sentenced Getzinger to pay a 

fine of $150.00 plus court costs. 

{¶7} Getzinger appealed the judgment of the trial court. This Court 

dismissed the appeal because the judgment entry did not specify the means of 

conviction. See State v. Getzinger, 3d Dist. No. 7-12-01 (JE, Feb. 2, 2012). 
Case No. 7-12-06 

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{¶8} On March 22, 2012, the trial court filed another judgment entry 

specifying that it found Getzinger guilty of violating R.C. 2917.11(A)(2) and 

imposed the same sentence of a $150.00 fine plus court costs. Getzinger 

subsequently appealed this judgment to this Court. 

{¶9} On August 2, 2012, Getzinger’s Attorney filed a motion with this 

Court stating that the audio recording from the trial court proceedings was 

compromised and the court reporter was unable to prepare a transcript. 

Getzinger’s Attorney requested an extension of time to write “a statement of facts 

or summary of the testimony.” (Mot. Aug. 2, 2012 at 2). 

{¶10} On August 6, 2012, this Court issued a judgment entry granting 

Getzinger’s Attorney leave to supplement the record with a statement of evidence 

pursuant to App.R. 9(C). 

{¶11} In lieu of a transcript, Getzinger’s Attorney submitted a document 

entitled “Appellant’s App.R. 9(C) Statement of Evidence Supplementing the 

Record Pursuant to Appellate Court Order of August 8, 2012 [sic].” After a brief 

summary of the testimony given at trial, Getzinger’s Attorney concludes this 

document by stating “while the above statement of evidence is somewhat sketchy, 

it does accurately summarize the salient points made during the trial as shown by 

my notes and recollection.” (Id. at 2). 
Case No. 7-12-06 

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{¶12} The foregoing “Statement of Evidence” contained a certificate of 

service indicating that opposing counsel was served with a copy. However, there 

is nothing in the record demonstrating that this document was created as a formal 

agreement between the parties, and there is nothing in the record demonstrating 

that this document was formally submitted to the trial court. Accordingly, there is 

nothing in the record to establish that the trial court approved Getzinger’s 

“Statement of Evidence” as required by App.R. 9(C). 

{¶13} Getzinger now appeals, asserting the following assignments of error. 

ASSIGNMENT OF ERROR NO. I

THE TRIAL COURT ERRED IN FAILING TO DISMISS THE 

COMPLAINT UPON DEFENDANTS [sic] MOTION; FOR 

FAILURE TO ALLEGE ALL THE ELEMENTS OF AN 

OFFENSE REQUIRED TO BE PROVEN UNDER R.C. 

2917.11(A)(2) AS AUTHORITATIVELY CONSTRUED BY 

THE OHIO SUPREME COURT IN State v. Hoffman, (1979) 57 

OHIO ST.2d 129, AS NECESSARY TO MAKE SUCH 

STATUTE CONSTITUTIONAL. 

ASSIGNMENT OF ERROR NO. II

THE TRIAL COURT ERRED IN FAILING TO GRANT 

DEFENDANTS’ [sic] MOTION TO DISMISS AT THE 

CONCLUSION OF THE CASE, FOR INSUFFICIENCY OF 

THE EVIDENCE TO SHOW HIS MERE WORDS BY THEIR 

VERY UTTERANCE TENDED TO INCITE AN IMMEDIATE 

BREACH OF THE PEACE AS NO BREACH OCCURRED 

AND THE VERBAL EXCHANGE WAS INITIATED BY THE 

COMPLAINT. 
Case No. 7-12-06 

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First Assignment of Error

{¶14} In his first assignment of error, Getzinger claims the complaint 

alleging he committed disorderly conduct in violation of R.C. 2917.11(A)(2) is 

constitutionally defective because the “fighting words” standard is omitted from 

the face of the complaint. Specifically, Getzinger argues that the Supreme Court 

of Ohio in State v. Hoffman, 57 Ohio St.2d 129 (1979), “authoritatively construed” 

the offense defined in R.C. 2917.11(A)(2) to also require the “words by their 

utterance, are likely to inflict injury or provoke an immediate retaliating breach of 

the peace” be proven as an additional “element” of the offense. 

{¶15} In making this argument, it is apparent that Getzinger misconstrues 

the Supreme Court’s holding in State v. Hoffman, in which the Court discussed the 

interaction between disorderly conduct based on speech and the First 

Amendment’s protection of free speech. In Hoffman, the Supreme Court stated 

that “a person may not be punished under R.C. 2917.11(A)(2) 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 inflict injury or provoke the average person to an immediate 

retaliatory breach of the peace.” (Id. at 133). The Court in Hoffman reversed the 

defendant’s conviction because the trial court failed to “take evidence” to 
Case No. 7-12-06 

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determine if the defendant’s conduct rose to the level of “fighting words.” (Id.). 

However, the Supreme Court did not specifically characterize this inquiry as 

additional “element” of the offense nor did it make any ruling regarding the 

sufficiency of the complaint alleging a violation of R.C. 2917.11(A)(2). 

{¶16} Moreover, “the requirements of an indictment may be met by reciting 

the language of the criminal statute.” State v. Childs, 88 Ohio St.3d 194, 199 

(2000), citing State v. Murphy, 65 Ohio St.3d 554, 583 (1992). Here, the criminal 

complaint recited verbatim the language contained in R.C. 2917.11(A)(2). 

Furthermore, we note that the record in this case demonstrates that the trial court 

complied with the directives of the Supreme Court in Hoffman. Accordingly, for 

all these reasons, we conclude that the trial court did not err in overruling 

Getzinger’s motion to dismiss. The first assignment of error is overruled. 

Second Assignment of Error

{¶17} In his second assignment of error, Getzinger challenges the 

sufficiency of the prosecution’s evidence to convict him of disorderly conduct in 

violation of R.C. 2917.11(A)(2). 

{¶18} Before we reach the merits of this assignment of error we note that 

App.R. 9 states that the appellant must submit a transcript of the trial court 

proceedings they deem necessary to the appellate court for its review. Specifically, 

App.R. 9(B)(4) states that “[i]f the appellant intends to present an assignment of 
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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.” 

{¶19} If no transcript is available, App.R. 9(C) and (D) provide alternatives 

for the appellant. The record indicates that the recording of the transcript was 

compromised and could not be transcribed. As a result, Getzinger attempted to 

avail himself of App.R. 9(C) which addresses the situation where no transcript or 

recording is available: 

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 

shall be served on the appellee no later than twenty days prior to 

the time for transmission of the record pursuant to App.R. 10 

and the appellee may serve on the appellant objections or 

propose amendments to the statement within ten days after 

service of the appellant’s statement; these time periods may be 

extended by the court of appeals for good cause. 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. 

(Emphasis added). 
Case No. 7-12-06 

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{¶20} “Approval as contemplated by Appellate Rule 9(C) means that, 

whether or not settlement is required, the trial court must determine the accuracy 

and truthfulness of a proposed statement of evidence or proceedings and then 

approve it. Independent of any agreement or disagreement between the parties, 

the trial court has the responsibility, duty, and authority under Appellate Rule 9(C) 

to delete, add or otherwise modify portions of a proposed statement of the 

evidence or proceedings so that it conforms to the truth and is accurate before it is 

approved.” Aurora v. Belinger, 180 Ohio App.3d 178, 2008–Ohio–6772, ¶ 35 

(11th Dist.), citing Joiner v. Illuminating Co., 55 Ohio App.2d 187, (8th 

Dist.1978), syllabus. 

{¶21} Here, the record reflects that Getzinger’s counsel prepared a 

proposed “Statement of Evidence” from his own recollection and served this 

proposed “Statement of Evidence” on the prosecution as required by App.R. 9(C). 

The record further indicates that the prosecution did not file any objections and we 

note that, for the first time on appeal, the prosecution acknowledges Getzinger’s 

“Statement of Evidence” by incorporating the document as part of the appendix in 

its appellate brief. 

{¶22} However, these circumstances, in our view, are not sufficient to 

establish a proper agreement by the Prosecutor to a proposed “Statement of 

Evidence” by the defense under App.R. 9(C), which clearly requires any such 
Case No. 7-12-06 

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agreement to be established in the trial court prior to the transmission of the record 

to the Court of Appeals. 

{¶23} Moreover, even if we were to somehow construe the “Statement of 

Evidence” to have been agreed to by the prosecution, the “Statement of Evidence” 

in this case must fail anyway because there is nothing in the record establishing 

that Getzinger’s proposed “Statement of Evidence” was submitted to the trial court 

for approval as required by the appellate rule and the trial court’s signature does 

not appear on the proposed “Statement of Evidence.” See King v. Plaster, 71 Ohio 

App.3d 360, 362 (3d Dist.1991)(stating that a reviewing court must presume that a 

trial court did not approve the statement of evidence if the trial court fails to sign 

the statement). Rather, the record demonstrates that Getzinger simply filed his 

proposed “Statement of Evidence” with this Court on appeal. In sum, even an 

agreement of the parties is not an acceptable substitute for the trial court’s 

approval as required by App.R. 9(C). 

{¶24} Therefore, since the proposed “Statement of Evidence” was never 

submitted to the trial court for approval, the statement and the filing thereof fail to 

comport with the requirements of App.R. 9(C). We further note that a number of 

“salient points” included in Getzinger’s proposed “Statement of Evidence” fail to 

include and/or even contradict some of the specific factual findings made by the 

trial court in its November 15, 2011 Judgment Entry thereby casting doubt on 
Case No. 7-12-06 

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whether the trial court would have approved Getzinger’s proposed “Statement of 

Evidence” without any modification. 

{¶25} Therefore, absent an adequate record of the facts, testimony, and 

evidentiary matters necessary to support the second assignment of error, which is 

the appellant’s responsibility to provide, this Court is left with no choice but to 

presume the validity of the proceedings and affirm trial court’s judgment. See 

Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199 (1980). Accordingly, 

Getzinger’s second assignment of error is overruled. 

{¶26} Based on the foregoing, the judgment and sentence of the Napoleon 

Municipal Court is affirmed. 

 Judgment Affirmed 

ROGERS, J., concurs. 

/jlr 

WILLAMOWSKI, J., Concurring in Part, and Dissenting in Part.

{¶27} While I concur with the majority’s disposition of the first assignment 

of error, I respectfully dissent as to its disposition of the second assignment of 

error because I believe that this case is capable of decision on the merits without 

the transcript, and in the event that this case is not capable of decision on the 

merits without the transcript, unlike the majority, I would accept the Statement of 
Case No. 7-12-06 

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Evidence Supplementing the Record, accepted by both sides as the facts herein, 

and address the second assignment of error on the merits and invite the majority to 

consider and be guided by Lewis v. New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 

L.Ed.2d 214 (1974), State v. Hoffman, 57 Ohio St.2d 129, 131 (1979), R.A.V. v. 

City of St. Paul, Minnesota, 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305 

(1992), and Seven Hills v. Aryan Nations, 76 Ohio St.3d 304, 308 (1996).