State v. Davis

[Cite as State v. Davis, 

.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               WYANDOT COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 16-23-01

        v.

EMMA J. DAVIS,
                                                           OPINION
        DEFENDANT-APPELLEE.

[AGNES PFEIFER - APPELLANT]



                    Appeal from Upper Sandusky Municipal Court
                            Trial Court No. CRB 2200279

                                        Appeal Dismissed

                            Date of Decision: August 28, 2023




APPEARANCES:

        Agnes A. Pfeifer, Appellant
Case No. 16-23-01


MILLER, P.J.

         {¶1} Victim-appellant, Agnes Pfeifer (“Pfeifer”), appeals a decision of the

Upper Sandusky Municipal Court denying her request to be present at all times

during the trial of the defendant, Emma J. Davis (“Davis”).1 For the reasons that

follow, we dismiss the appeal as moot.

         {¶2} On June 29, 2022, Pfeifer filed a complaint in the Upper Sandusky

Municipal Court alleging Davis committed criminal trespass on June 26, 2022 in

violation of R.C. 2911.21(A) on property owned by Pfeifer and her husband.

         {¶3} The matter proceeded to a bench trial on January 13, 2023.2 Following

the completion of the first witness’s testimony, defense counsel moved for the

separation of witnesses, and the trial court granted the motion. (Jan. 13, 2023 Tr. at

13-15). The State indicated it intended to call Pfeifer, the alleged victim, who was

present in the courtroom, as a witness. (Id. at 13). Pfeifer indicated she desired to

remain in the courtroom for the duration of the trial; however, the trial court directed




1
  The trial court’s decision to separate witnesses, and thus exclude Pfeifer from the courtroom, was made
during the course of the trial and was not journalized despite Pfeifer’s request for the court to do so.
Consequently, Pfeifer filed her appeal from the court’s judgment entry of acquittal.
2
  We note that the statement of facts in Pfeifer’s brief contains a number of factual statements that are not
contained in the record. (Appellant’s Brief at 2-3). In State v. Hooks, the Supreme Court of Ohio stated that
“a reviewing court cannot add matter to the record before it that was not a part of the trial court’s
proceedings.” State v. Hooks, 

 (2001). Additionally, the record cannot be enlarged by
factual assertions in an appellate brief. State v. Morrow, 5th Dist. Muskingum No. CT2021-0053, 2022-
Ohio-1089, ¶ 19. Accordingly, we disregard the statements in Pfeifer’s brief that were not part of the trial
court’s record as they are outside the scope of our review.


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Case No. 16-23-01


Pfeifer to wait outside the courtroom during the other witnesses’ testimony. (Id. at

13-15).

       {¶4} At the conclusion of the trial, the trial court found that, pursuant to

easement, Davis had privilege to be on the property owned by Pfeifer. Accordingly,

the trial court found Davis not guilty and discharged her. Later that day, the trial

court filed a judgment entry memorializing its decision.

       {¶5} On February 9, 2023, Pfeifer filed a notice of appeal. She raises one

assignment of error for our review.

                               Assignment of Error

       The trial court erred on January 13, 2023, when it granted
       Defendant’s Motion for Separation of Witnesses and instructed
       Victim to vacate the courtroom thereby denying Victim-Appellant A.P.’s constitutional and statutory right to be present
       at trial.

       {¶6} In her assignment of error, Pfeifer argues the trial court violated Article

I, Section 10a(A)(2) of the Ohio Constitution, Evid.R. 615(B)(4), and R.C. 2930.09

by denying her request to be present during the entirety of Davis’s trial.

       {¶7} Article I, Section 10a of the Ohio Constitution, commonly referred to

as Marsy’s Law, expanded the rights afforded to victims of crime. In pertinent part,

Marsy’s Law provides victims the right, “upon request, to reasonable and timely

notice of all public proceedings involving the criminal offense … and to be

present at all such proceedings.” Ohio Constitution, Article I, Section 10a(A)(2).


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Case No. 16-23-01


“While Marsy’s Law incorporates the victim’s right to be present at trial into the

Ohio Constitution, ‘the notion that a victim may remain present during the trial

proceedings is not new.’” Grandview Hts. v. B.S.H., 10th Dist. Franklin No. 22AP-

207, 

, quoting Cleveland v. Alrefaei, 8th Dist. Cuyahoga No.

107985, 

, ¶ 57. R.C. 2930.09, as effective at the time of the trial,

states that “[a] victim in a case may be present whenever the defendant … is

present during any stage of the case … that is conducted on the record, other than

a grand jury proceeding, unless the court determines that exclusion of the victim is

necessary to protect the defendant’s … right to a fair trial ….” R.C. 2930.09

(July 1, 1996)(current version at R.C. 2930.09 (Apr. 6, 2023)).

       {¶8} Evid.R. 615, which concerns separation of witnesses, provides that “at

the request of a party the court shall order witnesses excluded so that they cannot

hear the testimony of other witnesses” or “may make the order of its own motion.”

Evid.R. 615(A). However, Evid.R. 615 “does not authorize exclusion” of “an

alleged victim of the charged offense to the extent that the alleged victim’s presence

is authorized by statute … or by the Ohio Constitution.” Evid.R. 615(B).

       {¶9} Pfeifer contends the trial court violated her right to be present in the

courtroom during Davis’s trial by ordering a separation of witnesses, which

precluded her from being present in the courtroom during the testimony of the other

witnesses. Specifically, she contends that because the Davis failed to make a


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specific showing that her right to a fair trial would be prejudiced by Pfeifer’s

presence in the courtroom, the trial court erred by not permitting Pfeifer to remain

in the courtroom when she was not testifying.

       {¶10} In Grandview Hts. v. B.S.H., the Tenth District Court of Appeals

recently addressed a remarkably similar issue and we find the court’s decision in

that case persuasive. Grandview Hts., 

. As the Tenth

District recognized in Grandview Heights, even if we were to find the trial court

erred by denying Pfeifer’s request to be present during trial, there is no remedy we

can provide her. Id. at ¶ 10. Davis was acquitted of criminal trespassing, and the

Double Jeopardy Clause protects her from being tried again for the same offense.

Id. at ¶ 11. See Bravo-Fernandez v. United States, 

, 

(2016). Accordingly, since Davis may not be tried again, Pfeifer’s appeal of the

trial court’s decision not permitting her in the courtroom is moot. Grandview Hts.

at ¶ 11, citing State v. Brasher, ___Ohio St.3d___, 

.

       {¶11} Moreover, we note that victims are not parties to the underlying

criminal case, a designation that remains unchanged under Marsy’s Law. See

Brasher at ¶ 6, citing State v. Hughes, 

, ¶ 14 (8th Dist.). Here, the

trial court acquitted Davis of the sole charge.      Accordingly, the adversarial

proceeding between the defendant and the State, the parties to the proceeding, has




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concluded.3 “[T]he state constitution specifically provides that all prosecutions shall

be conducted by and in the name of the state of Ohio.” 

, citing Ohio

Constitution, Article IV, Section 20. Accordingly, “‘[i]t is not the victim’s interests

that are being represented in a criminal case, but rather those of the people of the

State of Ohio.’” 

 quoting State v. Williams, 7th Dist. Mahoning No. 09 MA 11,

.

         {¶12} “The doctrine of mootness is rooted both in the ‘case’ or ‘controversy’

language of Section 2, Article III of the United States Constitution and in the general

notion of judicial restraint.” James A. Keller, Inc. v. Flaherty, 

 (10th Dist.1991). “While Ohio has no constitutional counterpart to Section 2,

Article III, the courts of Ohio have long recognized that a court cannot entertain

jurisdiction over a moot question.” 

 “‘“The duty of [the court] … is to decide

actual controversies by a judgment which can be carried into effect, and not to give

opinions upon moot questions or abstract propositions, or to declare principles or

rules of law which cannot affect the matter in issue in the case before it.”’” Empace

Equip. Corp. v. Maximus Consulting, L.L.C., 9th Dist. Summit No. 27468, 2015-

Ohio-1801, ¶ 5, quoting Miner v. Witt, 

, 238 (1910), quoting Mills

v. Green, 

, 

 (1895). “In other words, an issue is moot



3
  In as much as the criminal case has concluded, neither the State nor Davis filed an appellate brief or took
any role in this appeal. Consequently, the crucible of justice pointing out flaws in an opposing party’s
argument that accompanies adversarial cases and controversies is not present in this matter.

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Case No. 16-23-01


when it has no practical significance, being instead merely hypothetical or

academic.” In re Guardianship of Weller, 2d Dist. Montgomery No. 24337, 2011-

Ohio-5816, ¶ 7. Pfeifer acknowledges that this court cannot remedy the situation

that occurred during the trial. However, she asks us to address her assignment of

error to “educate those that read the opinion of this Court on the merits of this appeal

and provide assistance to individuals in the future.” (Appellant’s Brief at 24).

Accordingly, Pfeifer argues that even if the present appeal is moot, we should

address her assignment of error because the exceptions to the mootness doctrine are

applicable here. We disagree.

        {¶13} “A court may hear an otherwise moot case when the issues are capable

of repetition, yet evade review, when a debatable constitutional question remains to

be resolved, or when the issues involved concern a matter of great public or general

interest.” In re L.W., 10th Dist. Franklin No. 05AP-317, 

,

. Pfeifer alleges that all three exceptions apply to the instant

case.

        {¶14} “An issue is capable of repetition yet evading review if the challenged

action is too short in duration to be fully litigated prior to its cessation and there is

a reasonable expectation that the parties will be subject to the same action again.”

State ex rel. Casanova v. Lutz, ___ Ohio St.3d. ___, 

. “‘It is

not enough for an issue to be capable of repetition between some parties; the issue


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must be capable of repetition between the “same” parties.’” 

 quoting M.R. v.

Niesen, 

, 

.

       {¶15} Pfeifer argues that the Supreme Court of Ohio and other appellate

courts have relaxed the “same complaining party” requirement. See e.g., In re

Suspension of Huffer from Circleville High School, 

 (1989);

State ex rel. Dispatch Printing Co. v. Louden, 

 (2001); Hughes

v. Registrar, Ohio BMV, 

, 307, 

. However, the

Supreme Court of Ohio recently espoused the requirement that the issue must be

between the same parties. See 

; State ex rel. Casanova v. Lutz, ____

Ohio St.3d _____, 

. See also Grandview Hts., 2023-Ohio-

940, at ¶ 16 (strictly upholding the requirement that the conflict be between the same

litigant when reviewing the denial of an alleged victim’s request to be present during

a trial). Because the trial court found Davis legally permitted to be on the property

in question, the court entered a judgment of acquittal. Under these facts, we do not

find that the instant case satisfies the mootness exception of being capable of

repetition, yet evading review. 

       {¶16} Pfeifer also contends the present case concerns a debatable

constitutional question that remains to be resolved. Specifically, Pfeifer argues

“[w]hether a victim is entitled to enforcement of her constitutional right to be

present, her rights to justice and due process, and the right to be treated with fairness


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Case No. 16-23-01


and respect for her dignity are important constitutional questions that need resolved

by this Court.” (Appellant’s Brief at 17). However, we do not find that the instant

case raises a debatable constitutional issue for this court to resolve. Notably, the

trial court was not asked, and therefore did not, conduct an analysis of Marcy’s Law.

Nor does Pfeifer challenge the constitutionality of any provision of Marsy’s Law.

Rather, Pfeifer complains the trial court erred in its application of the applicable law

to the facts in the instant case. Accordingly, Pfeifer’s arguments, as presented under

the particular facts of this case, do not implicate a broader discussion regarding

victims’ rights pursuant to Marsy’s Law. Thus, the instant case does not present a

debatable constitutional question that remains to be resolved. Grandview Hts.,

 (finding no debatable constitutional question where “the

case concerns the trial court’s application of the facts of the case to applicable law,

and does not involve a broader debate regarding victims’ rights under Marsy’s

Law”).

       {¶17} Finally, Pfeifer argues her assignment of error should be exempt from

the mootness doctrine because it involves a matter of great public or general interest.

Specifically, Pfeifer contends the instant case has the potential to impact the fair and

even implementation of Marsy’s Law to all crime victims. (Appellant’s Brief at

18). The validity of those concerns notwithstanding, this exception “should be used

with caution and only on rare occasions.” Rithy Properties, Inc. v. Cheeseman, 10th


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Dist. Franklin No. 15AP-641, 

. “Generally, the invocation of

this exception remains the province of the highest court in the state, rather than the

intermediate appellate courts, whose decisions do not have binding effect over the

entire state.” 

 Although the issue presented in the instant case is obviously of

great personal interest and importance to Pfeifer, we are not persuaded it rises to the

level of great public or general interest required to meet the high threshold necessary

to exempt the argument from the mootness doctrine. Grandview Hts. at ¶ 19-20;

State ex rel. City of Englewood Dir. of Law v. Red Carpet Inn, 2d Dist. Montgomery

No. 27590, 

.

       {¶18} Having found that none of the exceptions to the mootness doctrine

apply to the present case, we find Pfeifer’s appeal to be moot. Accordingly, we

dismiss the appeal.

                                                                   Appeal Dismissed

WALDICK and ZIMMERMAN, J.J., concur

/jlr




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