[Cite as State v. Tinley, 2018-Ohio-2239.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF MEDINA ) 

STATE OF OHIO 

 Appellee 

 v. 

MARI BETH TINLEY 

 Appellant 

C.A. No. 17CA0062-M 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

WADSWORTH MUNICIPAL COURT 

COUNTY OF MEDINA, OHIO 

CASE No. 17CRB0254 

DECISION AND JOURNAL ENTRY 

Dated: June 11, 2018 

 

CALLAHAN, Judge. 

{¶1} Defendant-Appellant, Mari Beth Tinley, appeals from her conviction in the 

Wadsworth Municipal Court. This Court affirms. 

I. 

{¶2} As a result of an incident that occurred on March 25, 2017, Ms. Tinley was 

charged with one count of domestic violence. Her trial date was postponed on two occasions and 

ultimately set for July 10, 2017. Though she attempted to demand a jury trial a few days before 

her scheduled trial, the court denied her request as untimely. An acting judge then presided over 

her trial due to the unavailability of the original judge. 

{¶3} The acting judge found Ms. Tinley guilty and scheduled the matter for a 

presentence interview. Ms. Tinley then filed a motion for new trial, and the original trial judge 

denied her motion. The court sentenced Ms. Tinley to suspended jail time, one year of 

probation, and a fine. 
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{¶4} Ms. Tinley now appeals from her conviction and raises seven assignments of error 

for review. For ease of analysis, this Court consolidates several of her assignments of error. 

II. 

ASSIGNMENT OF ERROR NO. 1 

THE COURT ERRED BY NOT EITHER CONTINUING THE TRIAL OR 

PRECLUDING THE STATE’S WITNESSES FROM TESTIFYING DUE TO 

THEIR FAILURE TO COMPLY WITH CRIMINAL RULE 16. 

ASSIGNMENT OF ERROR NO. 2 

THE COURT ERRED BY ALLOWING THE OFFICER TO TESTIFY TO 

HEARSAY. 

ASSIGNMENT OF ERROR NO. 3 

THE PHOTOS WERE NOT PROPERLY DISCLOSED DURING DISCOVERY 

AND SHOULD NOT HAVE BEEN ADMITTED. 

ASSIGNMENT OF ERROR NO. 4 

THE CONVICTION FOR DOMESTIC VIOLENCE WAS NOT SUPPORTED 

BY SUFFICIENT EVIDENCE AND WAS AGAINST THE WEIGHT OF THE 

EVIDENCE. 

{¶5} In the foregoing assignments of error, Ms. Tinley argues that the court committed 

reversible error during the course of the trial and that her conviction is based on insufficient 

evidence and is against the manifest weight of the evidence. Because the record does not contain 

a transcript of the proceedings, this Court has no choice but to presume regularity and reject each 

of her assignments of error. 

{¶6} App.R. 9(B)(1) provides that “it is the obligation of the appellant to ensure that 

the proceedings the appellant considers necessary for inclusion in the record, however those 

proceedings were recorded, are transcribed in a form that meets the specifications of App.R. 

9(B)(6).” (Emphasis added.) See also Loc.R. 5(A). The transcription of any necessary 

proceedings is, therefore, required, and an appellant may not rely solely on an audio-recording 
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for purposes of his or her appeal. See App.R. 9(B)(1) and App.R. 9(B)(6) (outlining various 

formatting requirements for bound volumes of transcripts). But see App.R. 9(B)(1) (providing 

for an exception in expedited abortion-related appeals from juvenile court). “‘When an appellant 

fails to provide a complete and proper transcript, a reviewing court will presume the regularity of 

the proceedings in the trial court and affirm.’” State v. Lothes, 9th Dist. Medina Nos. 

11CA0015-M, 11CA0016-M, 11CA0017-M, 2012-Ohio-1388, ¶ 7, quoting State v. Campbell, 

9th Dist. Medina No. 10CA0120-M, 2011-Ohio-5433, ¶ 5. 

{¶7} The record in this matter does not contain any transcripts. Following Ms. 

Tinley’s trial, the court recorder and secretary of the Wadsworth Municipal Court certified that 

the proceedings had been electronically recorded. Ms. Tinley did not ask the court to appoint a 

court reporter, but instead filed a praecipe for transcripts directly with the court. Subsequently, 

the court recorder and secretary filed an affidavit in which she averred that she was the official 

court reporter for the court. She further averred that the Wadsworth Municipal Court had “filed 

a complete transcript of all computer entries and proceedings” with this Court of Appeals and 

that “the same was a true and accurate record of the proceedings * * *.” An audio-recording of 

the trial was included along with her affidavit. Yet, the audio-recording was never transcribed, 

and Ms. Tinley took no further action to secure a transcript. 

{¶8} Upon review, this Court cannot resolve Ms. Tinley’s first, second, third, or fourth 

assignments of error on their merits in the absence of a trial transcript. The audio-recording 

contained in the record does not comport with App.R. 9 and is not a substitute for a proper 

transcript. See Lothes at ¶ 6-7; Campbell at ¶ 6-7. Because Ms. Tinley failed to ensure that these 

proceedings were transcribed in accordance with App.R. 9, this Court has no choice but to 

“‘presume the regularity of the proceedings in the trial court and affirm.’” Lothes at ¶ 7, quoting 
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Campbell at ¶ 5. Consequently, her first, second, third, and fourth assignments of error are 

overruled. 

ASSIGNMENT OF ERROR NO. 5 

THE DEFENDANT’S RIGHT TO A SPEEDY TRIAL WAS VIOLATED. 

{¶9} In her fifth assignment of error, Ms. Tinley argues that her statutory speedy trial 

rights were violated. This Court rejects her argument. 

{¶10} To preserve a statutory speedy trial argument for appeal, a defendant must invoke 

her speedy trial rights “at or prior to the commencement of trial.” R.C. 2945.73(B). Accord 

State v. Griffin, 9th Dist. Medina No. 2440-M, 1995 Ohio App. LEXIS 5613, *3 (Dec. 20, 1995). 

A defendant who fails to assert her speedy trial rights in a timely manner forfeits those rights and 

is limited to a claim of plain error on appeal. See State v. Carter, 9th Dist. Summit No. 27717, 

2017-Ohio-8847, ¶ 20; Griffin at *3. Even so, “[t]his Court has repeatedly noted that it will not 

sua sponte fashion an unraised plain error argument and then address it.” State v. Jacobs, 9th 

Dist. Summit No. 27545, 2015-Ohio-4353, ¶ 33.

{¶11} The record reflects that, prior to trial, Ms. Tinley never filed a motion to dismiss 

or discharge this matter based on a violation of her speedy trial rights. Though she claims that 

she raised a speedy trial argument at trial, this Court cannot confirm that she did so due to the 

absence of a trial transcript. See State v. Suttles, 9th Dist. Summit No. 28748, 2018-Ohio-1607, 

¶ 5 (presuming regularity where appellant failed to provide transcript). Absent any indication in 

the record that Ms. Tinley invoked her speedy trial rights “at or prior to the commencement of 

trial,” R.C. 2945.73(B), this Court must conclude that she forfeited those rights and is now 

limited to a claim of plain error. See Carter at ¶ 20. Ms. Tinley, however, has not argued plain 
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error on appeal, and this Court will not construct an argument on her behalf. See Jacobs at ¶ 33. 

Accordingly, her fifth assignment of error is overruled. 

ASSIGNMENT OF ERROR NO. 6 

IT WAS AN ABUSE OF THE TRIAL COURT’S DISCRETION TO NOT 

CONSIDER THE DEFENDANT’S MOTION FOR A NEW TRIAL. 

{¶12} In her sixth assignment of error, Ms. Tinley argues that the trial court abused its 

discretion when it failed to consider several aspects of her motion for a new trial. This Court 

disagrees. 

{¶13} Crim.R. 33(A) allows a defendant to move for a new trial when her substantial 

rights have been materially affected. A trial court’s ultimate decision to grant or deny a motion 

for new trial is one this Court reviews for an abuse of discretion. State v. McQuistan, 9th Dist. 

Medina No. 17CA0007-M, 2018-Ohio-539, ¶ 43. An abuse of discretion indicates that the trial 

court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5 

Ohio St.3d 217, 219 (1983). 

{¶14} Due to the unavailability of the original trial judge in this matter, an acting judge 

presided over Ms. Tinley’s trial. The original trial judge then received Ms. Tinley’s motion for a 

new trial. In ruling on the motion, the original trial judge indicated that he was unwilling to 

“second guess” the acting judge’s evidentiary rulings or decision to deny a continuance of the 

trial date. According to Ms. Tinley, the original trial judge’s refusal to “second guess” those 

rulings amounted to “an absolute refusal to consider the merits of [her] motion * * *.” She 

argues that it was unreasonable for the original trial judge to deny her motion based on “some 

sense of judicial loyalty to [the] acting judge * * *.” 

{¶15} Ms. Tinley has made no attempt to explain how she was prejudiced by the court’s 

handling of her motion. See Crim.R. 52(A). She has not explained why the underlying 
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arguments she advanced in her motion were meritorious. See App.R. 16(A)(7). Moreover, 

because she has not provided this Court with a transcript, she also has not ensured that this Court 

possesses an adequate record for review. See State v. Brooks, 9th Dist. Lorain No. 16CA010958, 

2017-Ohio-5620, ¶ 6, quoting State v. Keene, 9th Dist. Lorain No. 06CA008880, 2006-Ohio6676, ¶ 22 (“‘[T]he burden of ensuring that the record on appeal is complete is placed on 

appellant.”’). For the foregoing reasons, this Court rejects her argument that the trial court erred 

in its ruling on her motion for a new trial. Ms. Tinley’s sixth assignment of error is overruled. 

ASSIGNMENT OF ERROR NO. 7 

THE DEFENDANT’S RIGHT TO DUE PROCESS BY THE CASE BEING 

HEARD BY AN ACTING JUDGE INSTEAD OF A JURY. (Sic.) 

{¶16} In her seventh assignment of error, Ms. Tinley argues that her due process rights 

were violated because, after an acting judge was appointed to preside over her trial, she was 

denied the opportunity to demand a jury. For the following reasons, this Court rejects her 

argument. 

{¶17} Pursuant to R.C. 1901.121(A)(2)(a), a municipal judge may appoint an attorney to 

act in his or her stead if the municipal judge is the only one serving the municipality and he or 

she must be temporarily absent. Ms. Tinley does not dispute this statutory authority or otherwise 

argue that the original trial judge lacked the authority to appoint an acting judge. Instead, she 

argues that the timing of the appointment violated her due process rights because it occurred too 

close to her trial, such that she did not have the opportunity to make a timely demand for a jury 

trial.1

 

 

1

 Although Ms. Tinley repeatedly references a 14-day window as the timeframe within which she 

had to request a jury, the 14-day timeframe only applies in civil cases. See Civ.R. 38(B). In 

petty offense cases, a defendant must file a jury demand not less than ten days before trial. See

Crim.R. 23(A). 
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{¶18} The record is devoid of any journal entry or docket notation evidencing the formal 

appointment of an acting judge in this matter. Consequently, it is not clear from the record when 

the original trial judge actually appointed the acting judge who presided over Ms. Tinley’s trial. 

The record reflects that Ms. Tinley filed a jury demand five days before her scheduled trial date, 

and, the following day, a visiting judge (i.e., not the original judge or the acting judge) signed an 

entry denying her demand as untimely. Four days later, the acting judge issued a judgment 

entry, finding Ms. Tinley guilty and referring the matter for a presentence interview. No 

motions, entries, or notations were filed or entered in the four days between the visiting judge’s 

denial of Ms. Tinley’s written jury demand and the acting judge’s judgment entry. 

{¶19} According to Ms. Tinley, she did not receive any advance notice that her trial 

would be heard by an acting judge. She alleges that she “specifically renewed [her] jury demand 

at the start of the trial” to preserve this issue for review. As repeatedly noted, however, the 

record does not contain a transcript of the proceedings, so this Court cannot determine whether 

Ms. Tinley raised this issue at the start of trial. Although she filed a jury demand five days 

before her scheduled trial, she never indicated that she did so due to the appointment of an acting 

judge. She simply filed a demand for a jury, and the visiting judge denied it as untimely. Based 

on Ms. Tinley’s representation that she did not receive any advance notice of the appointment of 

the acting judge, it does not appear that her written jury demand bore any relation to that 

appointment. 

{¶20} Upon review, Ms. Tinley has not demonstrated that she preserved this issue for 

appeal by timely raising it in the lower court. See State v. Fitzgerald, 9th Dist. Summit No. 

23072, 2007-Ohio-701, ¶ 8 (“[A] forfeiture occurs where a party fails to assert a right or make an 

objection before the trial court in a timely fashion.”). Without a transcript, this Court cannot 
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confirm that she renewed her jury demand or otherwise raised a due process argument on that 

basis at trial. Further, even assuming the lack of a transcript would not foreclose her from 

prevailing on a claim of plain error, she has not argued plain error on appeal. See Jacobs, 2015-

Ohio-4353, at ¶ 33. Accordingly, this Court has no choice but to “‘presume the regularity of the 

proceedings in the trial court and affirm.’” Lothes, 2012-Ohio-1388, at ¶ 7, quoting Campbell, 

2011-Ohio-5433, at ¶ 5. Ms. Tinley’s seventh assignment of error is overruled. 

III. 

{¶21} Ms. Tinley’s assignments of error are overruled. The judgment of the Wadsworth 

Municipal Court is affirmed. 

Judgment affirmed. 

 

 There were reasonable grounds for this appeal. 

 We order that a special mandate issue out of this Court, directing the Wadsworth 

Municipal Court, County of Medina, State of Ohio, to carry this judgment into execution. A 

certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. 

 Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is 

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the 

mailing in the docket, pursuant to App.R. 30. 

 
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Costs taxed to Appellant. 

 

 LYNNE S. CALLAHAN 

 FOR THE COURT 

SCHAFER, P. J. 

CARR, J. 

CONCUR. 

APPEARANCES: 

SEAN C. BUCHANAN, Attorney at Law, for Appellant. 

THOMAS J. MORRIS, Assistant Director of Law, for Appellee.