[Cite as State v. Yambrisak, 2011-Ohio-5373.]

COURT OF APPEALS 

RICHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

THE STATE OF OHIO, 

 Plaintiff-Appellee, 

v. 

BYRON E. YAMBRISAK, 

 Defendant-Appellant. 

JUDGES: 

: Hon. W. Scott Gwin, P.J. 

: Hon. Julie A. Edwards, J. 

: Hon. Patricia A. Delaney, J. 

: 

: 

: Case No. 2011-CA-0038 

: 

: 

: O P I N I O N

CHARACTER OF PROCEEDING: Criminal appeal from the Mansfield 

Municipal Court, Case No. 2009-CRB-4883 

JUDGMENT: Reversed and Remanded 

DATE OF JUDGMENT ENTRY: October 17, 2011 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

SHARON M. WESSELMAN 

ASSISTANT LAW DIRECTOR RANDALL E. FRY 

CITY OF MANSFIELD 10 West Newlon Place 

30 N. Diamond Street Mansfield, OH 44902 

Mansfield, OH 44902 
Gwin, P.J. 

{¶ 1} Defendant-appellant Byron E. Yambrisak appeals from the March 29, 

2011 Judgment Entry of the Mansfield Municipal Court finding him in contempt of court. 

Plaintiff-appellee is the State of Ohio. 

STATEMENT OF THE FACTS AND CASE 

{¶ 2} On December 5, 2009, appellant was charged with violating a protection 

order in State of Ohio v. Byron Yambrisak, Mansfield Municipal Court, Case No. 2009-

CRB-4883. Due to the personally sensitive facts in this case, the parties consented to 

enter into mediation in an attempt to resolve this case without a criminal trial. This 

mediation took place on May 26, 2010, and a resolution for this mediation was 

discussed June 6, 2010.1

 By Judgment Entry filed October 6, 2010 the trial court set 

forth the agreement of the parties which included that the victim and appellant were to 

have no further contact, including “phone calls and internet postings.” 

{¶ 3} On September 28, 2010 the State filed a “Motion for Hearing to Show 

Cause” contending that appellant violated the May 26, 2010 order by posting blogs on 

the internet which refer to the victim and the above mentioned case. 

{¶ 4} On March 3, 2011, a contempt hearing was held. The trial court permitted 

the State to call appellant as a witness during the State’s case-in-chief. Appellant was 

the sole witness to testify at the show cause hearing. At the conclusion of the hearing, 

the trial court found appellant violated the order. The trial court then sentenced 

appellant to thirty days in the Richland County Jail starting immediately and after ten 

 

1

 No transcript of the mediation or any subsequent court hearing to discuss the mediation has been filed 

with this appeal. 
days the Court stated it would discuss with the appellant a mental health assessment 

and possible placement in the Mental Health Court program. 

{¶ 5} It is from the trial court’s March 3, 2011 Judgment Entry finding him in 

contempt of court that appellant has timely appealed raising the following two 

Assignments of Error: 

{¶ 6} “I. THE DEFENDANT-APPELLANT CONTENDS THAT THE CONTEMPT 

HEARING HELD ON MARCH 3, 2011, IN MANSFIELD MUNICIPAL COURT WAS NOT 

A CIVIL CONTEMPT HEARING BUT WAS A CRIMINAL CONTEMPT HEARING. AS A 

RESULT OF THIS BEING A CRIMINAL CONTEMPT HEARING, THE DEFENDANTAPPELLANT WAS ENTITLED TO INVOKE HIS FIFTH AMENDMENT RIGHTS, AS 

STATED IN THE FIFTH AMENDMENT OF THE UNITED STATES CONSTITUTION 

AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION. THE DEFENDANTAPPELLANT CONTENDS THAT THE CONTEMPT HEARING WAS A CRIMINAL 

CONTEMPT HEARING AND THEREFORE, HE SHOULD NOT HAVE BEEN 

COMPELLED TO BE A WITNESS AND TESTIFY AGAINST HIMSELF, AND HE 

SHOULD HAVE BEEN ADVISED OF HIS FIFTH AMENDMENT RIGHTS. 

{¶ 7} “II. THE DEFENDANT-APPELLANT CONTENDS THAT THE PLAINTIFFAPPELLEE PRESENTED NO EVIDENCE BY WHICH THE TRIAL JUDGE COULD 

CONCLUDE BEYOND A REASONABLE DOUBT THAT THE DEFENDANTAPPELLANT WAS THE AUTHOR OF THE BLOGS, WHICH THE PLAINTIFFAPPELLEE STATES VIOLATED THE JUDGMENT ENTRY OF MAY 26, 2010, 

LEADING THE TRIAL COURT TO FIND THE DEFENDANT-APPELLANT IN 

CONTEMPT OF COURT.” 
I. 

{¶ 8} In his First Assignment of Error, appellant argues the trial court violated 

his rights under the Fifth Amendment to the United States Constitution when it permitted 

the State to call him as a witness on cross-examination during its case-in-chief. We 

agree. 

{¶ 9} The Fifth Amendment to the United States Constitution provides, in 

pertinent part, as follows: “No person * * * shall be compelled in any criminal case to be 

a witness against himself.” 

{¶ 10} The Fifth Amendment applies in both criminal and civil proceedings. 

Lefkowitz v. Turley (1973), 414 U.S. 70, 77, 94 S.Ct. 316; Cincinnati v. Bawtenheimer

(1992), 63 Ohio St. 3d 260, 264. In a criminal proceeding, the Fifth Amendment permits 

a criminal defendant to completely refuse to testify. Id. By contrast, in a civil proceeding, 

the Fifth Amendment prohibits the state from compelling a witness to testify regarding a 

matter that “may tend to incriminate” the witness in a future criminal proceeding. 

Tedeschi v. Grover (1988), 39 Ohio App.3d 109, 111, 529 N.E.2d 480. “Compulsion, in 

this sense, arises whenever some penalty * * * is imposed for failing to offer testimony.” 

Id. The privilege applies to evidence that could directly support a criminal conviction, to 

information that would furnish a link in the chain of evidence that could lead to 

prosecution, and to evidence that a person reasonably believes could be used against 

him in a criminal prosecution. Cincinnati v. Bawtenheimer, supra. 

{¶ 11} In the case at bar, the only witness to testify at the show cause hearing 

was appellant. He was called to testify by the State. On four occasions during 

questioning by the prosecutor, appellant attempted to invoke his Fifth Amendment 
protection against self-incrimination. The trial court ordered appellant to answer the 

questions. (T. at 17, 21, 27, 28). 

{¶ 12} A court may punish disobedience of its order pursuant to both R.C. 

2705.02(A) and its inherent power to enforce its authority. Zakany v. Zakany (1984), 9 

Ohio St.3d 192, 459 N.E.2d 870, syllabus. Contempt may be either direct or indirect. In 

re Purola (1991), 73 Ohio App. 3d 306, 310, 596 N.E.2d 1140. In addition, “[c]ontempt is 

further classified as civil or criminal depending on the character and purpose of the 

contempt sanctions.” Purola at 311, 596 N.E.2d 1140. “Civil contempt is designed to 

benefit the complainant and is remedial in nature. * * * Thus, an individual charged with 

civil contempt must be permitted to appear before the court and purge himself of the 

contempt by demonstrating compliance with the court's order.” State v. Miller, Holmes 

App. No. 02 CA 16, 2003-Ohio-948, ¶ 28, citing Purola, supra. 

{¶ 13} The key feature of civil contempt is that a sanction for civil contempt must 

allow the contemnor the opportunity to purge him or herself of contempt.” O'Brien v. 

O'Brien, Delaware App.No.2003-CA-F12069, 2004-Ohio-5881, ¶ 68, citing Burchett v. 

Miller (1997), 123 Ohio App.3d 550, 552, 704 N.E.2d 636 (additional citations omitted). 

{¶ 14} In contrast, the punishment in a criminal contempt action generally 

consists of an unconditional prison sentence. Imprisonment for criminal contempt 

serves as punishment for a completed act of disobedience, vindicating the authority of 

the court. Brown v. Executive 200, Inc. (1980), 64 Ohio St. 2d 250, 253, 416 N.E. 

2d 610. Therefore, in order to constitute criminal contempt, a sanction must have an 

“overriding punitive purpose [.]” State v. Kilbane (1980), 61 Ohio St.2d 201, 206, 400 

N.E.2d 386. 
{¶ 15} The pertinent test in distinguishing criminal and civil contempt is as 

follows: “what does the court primarily seek to accomplish by imposing sentence?” 

Shillitani v. U.S. (1966), 384 U.S. 364, 370, 86 S.Ct. 1531. Although imprisonment can 

result from a civil contempt finding, the primary purpose of imprisonment in the civil 

context is remedial, 

{¶ 16} “But imprisonment for civil contempt is ordered where the defendant has 

refused to do an affirmative act required by the provisions of an order which, either in 

form or substance, was mandatory in its character. Imprisonment in such cases is not 

inflicted as a punishment, but is intended to be remedial by coercing the defendant to do 

what he had refused to do. The decree in such cases is that the defendant stand 

committed unless and until he performs the affirmative act required by the court's order.” 

Gompers v. Buck’s Stove & Range Co. (1911), 221 U.S. 418, 442, 31 S.Ct. 492, 498. 

{¶ 17} In the case sub judice, the trial court imposed an unconditional thirty-day 

jail sentence upon appellant. The trial court imposed this sentence strictly as a 

punishment for appellant's disobedience of the prior orders of the court. Thus, the thirtyday unconditional jail sentence was punishment for indirect criminal contempt. Beltz v. 

Beltz, Stark App. Nos. 2005CA00193, 2005CA00194, 2006-Ohio-1144 at ¶46. 

{¶ 18} Accordingly, the trial court committed reversible error by overruling 

appellant's objection to testifying in response to the questions that would result in 

proving either directly or indirectly that he violated the prior court order. 

{¶ 19} Appellant’s First Assignment of Error is sustained. 

{¶ 20} In light of our disposition of appellant’s First Assignment of Error, we find 

appellant’s Second Assignment of Error to be premature. 
{¶ 21} Accordingly, we reverse the judgment of the Mansfield Municipal Court, 

Richland County, Ohio and remand this cause to the trial court for further proceedings 

consistent with this opinion. 

By Gwin P.J., 

Edwards, J., and Delaney, J., concur 

 

 _________________________________ 

 HON. W. SCOTT GWIN 

 _________________________________ 

 HON. JULIE A. EDWARDS 

 _________________________________ 

 HON. PATRICIA A. DELANEY 

WSG:clw 0927 
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

THE STATE OF OHIO : 

 : 

 Plaintiff-Appellee, : 

 : 

 : 

v. : JUDGMENT ENTRY 

 : 

BYRON E. YAMBRISAK, : 

 : 

 : 

 Defendant-Appellant. : CASE NO. 2011-CA-0038 

For the reasons stated in our accompanying Memorandum-Opinion, we reverse 

the judgment of the Mansfield Municipal Court, Richland County, Ohio and remand this 

cause to the trial court for further proceedings consistent with this opinion. Costs to 

appellee. 

 _________________________________ 

 HON. W. SCOTT GWIN 

 _________________________________ 

 HON. JULIE A. EDWARDS 

 _________________________________ 

 HON. PATRICIA A. DELANEY