[Cite as State v. Brock,
2022-Ohio-3439.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 21AP-188
v. : (M.C. No. 2020CRB-10429)
Tatiana D. Brock, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on September 29, 2022
On brief: Zacchary M. Klein, City Attorney, Melanie R.
Tobias-Hunter, and Orly Ahroni, for appellee. Argued: Orly
Ahroni.
On brief: Yeura R. Venters, Public Defender, and Timothy E.
Pierce, for appellant. Argued: Timothy E. Pierce.
APPEAL from the Franklin County Municipal Court
DORRIAN, J.
{¶ 1} Defendant-appellant, Tatiana D. Brock, appeals the April 7, 2021 judgment
of the Franklin County Municipal Court finding her guilty of disorderly conduct, a
misdemeanor of the fourth degree, in violation of R.C. 2317.11. For the following reasons,
we reverse.
I. Facts and Procedural History
{¶ 2} On July 21, 2020, appellant was charged with domestic violence, in violation
of R.C. 2919.25(A), and assault, in violation of R.C. 2903.13(A), both misdemeanors of the
first degree. The charges stemmed from an incident on July 18, 2020, when appellant was
attempting to retrieve her child from her former partner, Mr. Deswon T. Horton. The
allegation in the complaints was that appellant attempted to stab Horton with a knife. The
No. 21AP-188 2
case was presented to a jury. At the jury trial, appellant testified she punched Horton in the
shoulder when she recovered from him pushing her off the steps. Appellant testified
Horton grabbed her neck and they both fell backwards, at which point Horton grabbed her
mace. She testified she then ran to her car to get a knife to protect herself from Horton
while she was still trying to retrieve her child. She pointed the knife at Horton and told him
"don't F with me." (Apr. 5-7, 2021 Tr. Vol. II at 263.) Appellant testified she never
attempted to injure Horton with the knife. Appellant retrieved her child, called her brother
and mother and, at her mother's urging, called 911 while driving away. She then returned
to Horton's residence to await the arrival of police. Horton, a witness for the prosecution,
testified appellant attempted to mace him when he opened the door to his house, but
instead maced his wife and two of their children. Horton testified he tried to wrestle the
mace from appellant's hands, pushed her and she fell off the steps. He went down to her to
see if she had any other weapons. He testified appellant then ran to her car, grabbed a knife
and came toward him and swung it at him, dropped it and then came toward him again
with the knife in her hand. Horton testified appellant left his property and his wife called
police. Appellant then returned to Horton's home and began threatening him and his wife.
Ultimately, police arrested and charged appellant with the domestic violence and assault
charges alleging she attempted to stab Horton with the knife.
{¶ 3} At the jury instruction conference, the prosecution asked the court to instruct
the jury on the domestic violence and assault charges as well as disorderly conduct pursuant
to the Columbus City Code ("C.C.C.") 2317.11, a misdemeanor of the fourth degree, as a less
included offense of the assault charge. Appellant asked that the instruction be given
pursuant to the state Revised Code, R.C. 2917.11(A)(1). The trial court indicated it would
instruct the jury pursuant to the Columbus City Code and then instructed the jury on the
elements of disorderly conduct both verbally and in the written instructions as follows:
Further, the defendant may be convicted of a lesser offense of
disorderly conduct. Before you can find the defendant guilty
of disorderly conduct, you must find beyond a reasonable
doubt that on or about the 18th day of July, 2020, the
defendant recklessly caused inconvenience, annoyance, or
alarm to another, to wit: Deswon Horton.
(Apr. 5-7, 2021 Tr. Vol. II at 329.)
No. 21AP-188 3
{¶ 4} The jury began its deliberations and submitted a written question to the
court. The jury asked "[a]re all three (3) charges [meaning assault, domestic violence, and
disorderly conduct] solely related to the knife incident?" (Apr. 5-7, 2021 Tr. Vol. II at 340;
Jury Note, manila envelope.) The court discussed the jury's question with counsel for
appellant and the prosecutor. During the discussion, plaintiff-appellee, State of Ohio,
moved to amend the complaint pursuant to Crim.R. 7(D) to add, in addition to the
allegation of attempting to stab Horton with a knife, to the "to wit" portion of the complaints
"and/or did Mace Deswon Horton, Jr., Amber Horton, or Diamyne Hill; and/or did punch
Deswon Horton, Sr." (Apr. 5-7, 2021 Tr. Vol. II at 345.) The trial court granted the motion
"only as to Mr. Horton, Sr." but not as to the other persons. (Apr. 5-7, 2021 Tr. Vol. II at
353.) The parties agreed that the domestic violence and assault charges were limited to the
knife. However, appellant's counsel argued the disorderly conduct lesser-included offense
also was limited to the knife, whereas the prosecutor argued it was not. The court then
instructed the jury:
The Court has received a note from the jurors reading, "Are all
three charges solely related to the knife incident?"
And we have here the Court. Counsel for both parties and the
defendant aren't here with us. The Court is going to tell you
that the knife is limited to the domestic violence and assault
charges. In regard to the domestic violence -- to the disorderly
conduct, you will need to read and review the jury instructions
that were given to you already.
(Apr. 5-7, 2022 Tr. Vol. II at 354.)
{¶ 5} The jury found appellant not guilty of domestic violence, not guilty of assault,
but guilty of disorderly conduct. The court imposed sentence.
II. Assignments of Error
{¶ 6} Appellant appeals and assigns the following five assignments of error for our
review:
[I.] Appellant's right to a unanimous jury verdict, right to a fair
trial, and right to due process of law were violated when the
trial court misstated the statutory elements of disorderly
conduct which, along with the prosecution's actions, misled the
jury thereby causing uncertainty as to the grounds for the jury's
verdict. These actions deprived Appellant of her rights
preserved under the Fifth, Sixth, and Fourteenth Amendments
No. 21AP-188 4
of the United States Constitution, Article III, Section 2 of the
United States Constitution, Article I, Sections 5, 10, and 16 of
the Ohio Constitution, R.C. 2945.11 and Crim.R. 31(A).
[II.] The trial court violated Appellant's right to a fair trial and
right to due process of law by misstating the elements of
disorderly conduct which misled the jury and caused it to find
Appellant guilty of a nonexistent form of that offense which
criminalizes activity that is not unlawful. The trial court's
actions deprived Appellant of her rights under the Fifth, Sixth,
and Fourteenth Amendments of the United States
Constitution, Article III, Section 2 of the United States
Constitution, Article I, Sections 5, 10, and 16 of the Ohio
Constitution, and R.C. 2945.11.
[III.] Appellant must be granted a new trial inasmuch as the
trial court plainly erred by failing to instruct the jury of the
essential elements of disorderly conduct. The court's actions
violated Appellant's rights under the Fifth, Sixth, and
Fourteenth Amendments of the United States Constitution,
Article III, Section 2 of the United States Constitution, Article
I, Sections 5, 10, and 16 of the Ohio Constitution, R.C. 2945.11
and Crim.R. 52(B).
[IV.] Appellant was deprived of her right to a fair trial and due
process of law, and her conviction rendered void, when both
the prosecution and the trial judge misled the jury by informing
jurors that, under the circumstances of this case, disorderly
conduct was not a lesser included offense of domestic violence
and/or assault but rather was a separate, factually distinct
criminal offense unrelated to the conduct associated with
domestic violence and/or assault. The actions of the
prosecution and the court deprived Appellant of her rights
under the Fifth, Sixth, and Fourteenth Amendments of the
United States Constitution, Article III, Section 2 of the United
States Constitution, Article I, Sections 5, 10, and 16 of the Ohio
Constitution, R.C. 2945.11, R.C. 2945.74, Crim.R. 3 and
Crim.R. 31(C).
[V.] Appellant's conviction for disorderly conduct is not
supported by sufficient evidence and runs against the manifest
weight of the evidence.
III. Analysis
{¶ 7} We begin by addressing the first, second, and third assignments of error as
they are dispositive of this appeal.
No. 21AP-188 5
{¶ 8} Disorderly conduct under C.C.C. 2317.11 states in relevant part:
(A) No person shall recklessly cause inconvenience,
annoyance, or alarm to another, by doing any of the following:
(1) Engaging in fighting, in threatening harm to persons or
property, or in violent or turbulent behavior[.]
{¶ 9} As noted previously, the trial court instructed the jury as follows:
Further, the defendant may be convicted of a lesser offense of
disorderly conduct. Before you can find the defendant guilty
of disorderly conduct, you must find beyond a reasonable
doubt that on or about the 18th day of July, 2020, the
defendant recklessly caused inconvenience, annoyance or
alarm to another, to wit: Deswon Horton.
(Apr. 5-7, 2021 Tr. Vol. II at 329.)
{¶ 10} Appellant argues, and the state concedes, that the trial court plainly erred in
omitting from the instructions the elements in subsection (1) of C.C.C. 2317.11(A) of
"[e]ngaging in fighting, in threatening harm to persons or property, or in violent or
turbulent behavior." This court agrees and finds the trial court erred in this regard.
{¶ 11} Accordingly, we sustain appellant's first, second, and third assignments of
error.
{¶ 12} The state argues the disposition of the first, second, and third assignments of
error renders moot the fourth and fifth assignments of error as the case should be reversed
and remanded for a new trial on the disorderly conduct charge. Appellant argued in her
brief that the conviction must be set aside and she must either be afforded a new trial or
discharged from these proceedings. However, at oral argument, appellant argued this court
should consider the fourth assignment of error, sustain the same and then render void and
vacate the conviction for disorderly conduct. Consistent with its arguments before the trial
court during the discussion of the jury's question, appellant argued before us at oral
argument that the jury found her guilty of disorderly conduct on the evidence presented
regarding her yelling, screaming, and threatening from the curb after the knife incident.
According to appellant, such a finding by the jury is void because the yelling, screaming,
and threatening from the curb were not the facts alleged in the complaint.
No. 21AP-188 6
{¶ 13} However, we do not know upon what evidence the jury found appellant guilty
of disorderly conduct. We also acknowledge the trial court's amending of the assault
complaint to include an allegation of punching Horton. Finally, we do not know the reasons
the jury found appellant not guilty of domestic violence and assault. Was it because the
jury found the prosecution did not meet its burden as to the mens rea of knowingly? Or
because the jury found the prosecution did not meet its burden as to the physical harm
element? Or because the jury found the prosecution did not meet its burden as to the
attempt element? We cannot speculate, and, for that reason, we decline to accept
appellant's argument to address the fourth assignment of error and find it to be moot.
{¶ 14} Therefore, given our disposition of the first, second, and third assignments of
error, it is not necessary for us to address the fourth and fifth assignments of error.
{¶ 15} Accordingly, we render moot the fourth and fifth assignments of error.
IV. Conclusion
{¶ 16} Based on the foregoing, appellant's first, second, and third assignments of
error are sustained, appellant's fourth and fifth assignments of error are rendered moot,
the judgment of the Franklin County Municipal Court is reversed, and this matter is
remanded to that court for further proceedings in accordance with law and consistent with
this decision.
Judgment reversed and cause remanded.
KLATT and JAMISON, JJ., concur.
