[Cite as Parma v. Brown, 2016-Ohio-7963.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 104219 

CITY OF PARMA 

PLAINTIFF-APPELLEE 

vs.

ERIC S. BROWN

 DEFENDANT-APPELLANT

JUDGMENT: 

AFFIRMED 

Criminal Appeal from the 

Parma Municipal Court 

Case No. 16 TRD 01277 

BEFORE: Jones, A.J., Boyle, J., and Celebrezze, J. 

 

RELEASED AND JOURNALIZED: December 1, 2016 
FOR APPELLANT 

Eric Brown, pro se 

2915 Russell Avenue 

Parma, Ohio 44134 

ATTORNEYS FOR APPELLEE

Timothy G. Dobeck 

Parma Law Director 

6611 Ridge Road 

Parma, Ohio 44129 

BY: John Spellacy 

Assistant City Prosecutor 

5555 Powers Boulevard 

Parma, Ohio 44129 

LARRY A. JONES, SR., A.J.: 
{¶1} In this accelerated appeal under App.R. 11.1 and Loc.App.R. 11.1, 

defendant-appellant Eric S. Brown (“Brown”), appeals, pro se, his traffic ticket for 

driving left of center. We affirm. 

{¶2} In January 2016, Parma Patrolman Thomas Kuchler issued Brown a citation 

for passing left of center, a violation of Parma Codified Ordinances 331.05. On 

February 18, 2016, Brown filed a timely demand for discovery pursuant to Crim.R. 16. 

He also moved to dismiss his case, arguing that the traffic ticket was insufficient to 

institute a case against him. On March 1, 2016, Brown again moved to dismiss his case 

arguing the prosecutor had yet to comply with his demand for discovery. The trial court 

denied his motions and proceeded to trial that same day. The trial court found Brown 

guilty, fined him $100, and suspended $50 of the fine. 

{¶3} Brown filed a notice of appeal. In his original brief on appeal, Brown 

argued in his sole assignment of error that the trial court erred in denying his pre- and 

post-trial motions. This court sua sponte struck his brief pursuant to App.R. 16. 

Brown subsequently filed an amended appellate brief in which he raised two assignments 

of error. His first assignment of error again challenged the trial court’s denial of his of 

pre- and post-trial motions. His second assignment of error reads: “Trial court erred in 

adopting Judge[’s] decision.” Although the appellate rules do not allow parties to file 

conforming briefs that add assignments of error once a brief has been struck under 

App.R. 16, we will consider Brown’s assignments of error as his second assigned error 

essentially makes the same argument as his first assigned error. 
{¶4} In his assigned errors, Brown argues that the trial court’s decision should be 

reversed because the city violated Crim.R. 16. Crim.R. 16 governs discovery and 

applies to proceedings for traffic violations. See Traf.R. 11(B)(2)(b). Traf.R. 11 

provides that requests and motions for discovery under Crim.R. 16 must be made before 

trial. Traf.R. 11(B)(2)(b). A defendant may, “in order to raise objections prior to trial 

under subsection (B)(2), request notice of the prosecuting attorney’s intention to use 

evidence in chief at trial, which evidence the defendant is entitled to discover under 

Criminal Rule 16.” Traf.R. 11(D). 

{¶5} Pursuant to Crim.R. 16(B)(1)-(5), Brown requested the following discovery: 

any statements he had made; his prior record; documents and tangible objects; reports of 

examinations and tests; witness names and addresses; and any evidence favorable to him. 

 The city argues that it provided all discovery to Brown during a pretrial — the traffic 

ticket was the city’s only exhibit and Patrolman Kuchler its only witness. While that 

may be the case, the docket does not reflect that the city responded to Brown’s discovery 

request. Crim.R. 16’s mandates are not discretionary even in minor traffic offense 

cases; because Crim.R. 16 applies to proceedings for traffic violations and states that the 

prosecuting attorney “shall” provide discovery, its mandates are just that — mandatory. 

{¶6} While there may have been some on-the-record discussion among the court 

and parties with regard to discovery prior to trial, we are not privy to such communication 

because Brown failed to file a transcript or an App.R. 9(C) statement of proceedings. 

The duty to provide a transcript for appellate review falls upon the appellant. State v. 
Haley, 1st Dist. Hamilton No. C-150748, 2016 Ohio App. LEXIS 3525, 2 (Sept. 2, 2016), 

citing Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980). 

In April 2016, Brown filed a motion with this court stating that the trial court’s court 

reporter informed him that no transcript was available, so he intended to file a statement 

of proceedings under App.R. 9(C). App.R. 9(C) provides: 

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. 

{¶7} As mentioned, Brown indicated to this court that he was pursuing an App.R. 

9(C) statement of proceedings. This court gave him until May 6, 2016, to complete the 

record; however, Brown failed to file a statement with this court nor did he seek any 

further extensions of time in which to complete the record. On May 13, 2016, this court 

ruled that the appeal would proceed on the App.R. 9(A) trial court record without the 

App.R. 9(C) statement. 

{¶8} During oral argument, the parties discussed that they dealt with the discovery 

issue with the trial court on the day of trial. But because there was no transcript or 

App.R. 9(C) statement of proceedings filed with this court, we do not know the content of 
that discussion. What was discussed among the court and the parties about the discovery 

issue is clearly germane to this appeal. And because it is incumbent upon the appellant 

to provide this court with either the transcript or App.R. 9(C) statement, we must presume 

regularity. See Haley at id.; State v. McClintock, 4th Dist. Meigs No. 13CA4, 

2013-Ohio-5598, ¶ 13. 

{¶9} It bears mentioning, however, that the city admitted at oral argument that it 

often responds to written discovery requests with oral discovery responses during 

pretrials, and it claims that it did so in this case. Again, the docket does not indicate that 

the city provided discovery to Brown. To avoid just this sort of problem in the future, 

the best practice would be for the city to respond to a party’s discovery demand in writing 

or to make sure that the case docket indicates that discovery was provided, if done so 

orally, during a pretrial. 

{¶10} Although the city was obligated to respond to Brown’s discovery request 

and the docket does not indicate that it complied, and because the record does not include 

a transcript or App.R. 9(C) statement of proceedings, we are unable to review the merits 

of Brown’s arguments. Therefore, we find that the trial court did not abuse its discretion 

in denying Brown’s motions. 

{¶11} The assignments of error are overruled. 

{¶12} Judgment affirmed.

It is ordered that appellee recover of appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 
It is ordered that a special mandate issue out of this court directing the Parma 

Municipal Court carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

 

LARRY A. JONES, SR., ADMINISTRATIVE JUDGE

MARY J. BOYLE, J., and 

FRANK D.CELEBREZZE, JR., J., CONCUR