CourtListener opinion 9918439

Evidence quotes

Clean opinion text

[Cite as State v. Haugh, 2024-Ohio-79.]

 COURT OF APPEALS
 TUSCARAWAS COUNTY, OHIO
 FIFTH APPELLATE DISTRICT

 STATE OF OHIO : JUDGES:
 :
 : Hon. William B. Hoffman, P.J.
 Plaintiff-Appellee : Hon. John W. Wise, J.
 : Hon. Patricia A. Delaney, J.
 -vs- :
 : Case No. 2023AP020009
 :
 WILSON C. HAUGH, JR. :
 :
 :
 Defendant-Appellant : OPINION

 CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County
 Court of Common Pleas, Case No.
 2021CR030093

 JUDGMENT: AFFIRMED

 DATE OF JUDGMENT ENTRY: January 11, 2024

 APPEARANCES:

 For Plaintiff-Appellee: For Defendant-Appellant:

 RYAN STYER GEORGE URBAN
 TUSCARAWAS CO. PROSECUTOR 116 Cleveland Ave. NW, Ste. 808
 KRISTINE W. BEARD Canton, OH 44702
 125 E. High Ave.
 New Philadelphia, OH 44663
 [Cite as State v. Haugh, 2024-Ohio-79.]

 Delaney, J.

 {¶1} Appellant Wilson C. Haugh, Jr. appeals from the March 15, 2023 Judgment

 Entry on Sentencing of the Tuscarawas County Court of Common Pleas. Appellee is the

 state of Ohio.

 FACTS AND PROCEDURAL HISTORY

 {¶2} The following evidence is adduced from the record of appellant's jury trial.

 {¶3} Appellant and Jane Doe were married for 7 years and lived in Tuscarawas

 County. They had one child together, Mary Doe. In 2014, Jane Doe left the marital

 residence, filed for an annulment, and obtained a civil protection order (CPO) against

 appellant which expired in one year. Appellant moved to Lorain County and filed for

 divorce there. The divorce was final in October 2015. Appellant continued to live in Lorain

 County, and Jane and Mary Doe continued to live in Tuscarawas County.

 {¶4} Jane Doe's original CPO expired and she sought another. On March 6,

 2018, a "Domestic Violence Civil Protection Order (CPO) Full Hearing (R.C. 3113.31)"

 was filed in the Tuscarawas County Court of Common Pleas. The named protected

 persons are Jane Doe and Mary Doe, and the expiration date of the CPO is March 1,

 2023. Respondent is appellant, who is ordered to, e.g., not initiate or have any contact

 with Jane and Mary at their residence, workplace, or school. The order defines "contact"

 as, e.g., by delivery service, "social networking media," and communications by any

 means, directly or through another person. The Sheriff's Return states the CPO was

 personally served on appellant on March 16, 2018.1

 1
 Appellee's Exhibit A.
 [Cite as State v. Haugh, 2024-Ohio-79.]

 {¶5} In 2018, Jane called police because appellant violated the CPO and appellant

 was ultimately convicted of misdemeanor violation of a protection order pursuant to R.C.

 2919.27. Appellee's Exhibit B is a certified copy of appellant's conviction in the New

 Philadelphia Municipal Court upon one count of violation of a protection order. Appellant

 entered a counseled plea of no contest and was found guilty on or around April 23, 2018.

 {¶6} On or around November 10, 2020, an Amazon package arrived at the

 residence of Jane and Mary Doe, addressed to Mary. The package contained a blanket.

 Appellee's Exhibit C is a photograph taken by Officer Boyd of the New Philadelphia Police

 Department. The photo shows a blanket depicting an air-mail envelope containing the

 following printed message: "To My Daughter: Even when I'm not close by, I want you to

 know I love you and I'm so proud of you. Wrap yourself up in this and consider it a big

 hug! Love, Dad." During his pro se opening statement at trial and throughout the

 proceedings, appellant admitted he sent Mary Doe this blanket. T. 128.

 {¶7} On January 8, 2021, Jane Doe reported appellant contacted her in a group

 chat via Facebook Messenger. Appellee's Exhibit D is a printout of a Facebook

 Messenger group chat including two postings of a meme, both posted by "Wilson," of a

 menacing Santa Claus figure with the words, "PARENTAL ALIENATION[:] If a child only

 sees one parent this holiday YOU KNOW WHO THE ABUSER IS." Jane testified the

 Facebook Messenger group is "old" but includes Jane, appellant, and family members on

 both sides.

 {¶8} Jane reported both incidents to the New Philadelphia Police Department

 because appellant violated the terms of the CPO and put her in fear for her own and
 [Cite as State v. Haugh, 2024-Ohio-79.]

 Mary's safety. Officers confirmed appellant's prior conviction and collected evidence,

 including the photograph of the blanket and the printout of the group chat.

 {¶9} Appellant was charged by indictment with one count of violation of a

 protection order pursuant to R.C. 2919.27(A)(1) and (B)(3)(C), a felony of the fifth degree,

 and entered a plea of not guilty. Appellant was represented by several attorneys in the

 history of the case but represented himself at trial with standby counsel. Appellant moved

 for a judgment of acquittal at the close of the evidence; the motion was overruled.

 {¶10} Appellant was found guilty as charged. The jury also found appellant had

 a prior conviction for violation of a CPO. The trial court ordered a pre-sentence

 investigation and deferred sentencing. Appellant was later sentenced to a term of one

 year of community-control supervision and 75 hours of community service.

 {¶11} Appellant now appeals from the trial court's entry of conviction and

 sentence.

 {¶12} Appellant raises two assignments of error:

 ASSIGNMENTS OF ERROR

 {¶13} "I. APPELLANT'S CONVICTIONS WERE AGAINST THE MANIFEST

 WEIGHT AND SUFFICIENCY OF THE EVIDENCE."

 {¶14} "II. THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANT'S

 CRIMINAL RULE 29 MOTION FOR ACQUITTAL BECAUSE THE STATE FAILED TO

 PRODUCE SUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION AGAINST

 APPELLANT."
 [Cite as State v. Haugh, 2024-Ohio-79.]

 ANALYSIS

 I., II.

 {¶15} Appellant's two assignments of error are related and will be considered

 together. He argues his conviction upon one count of violation of a protection order is not

 supported by sufficient evidence and is against the manifest weight of the evidence, and

 the trial court should have granted his motion for acquittal pursuant to Crim.R. 29(A). We

 disagree.

 {¶16} Appellant argues his conviction is supported by insufficient evidence. The

 legal concepts of sufficiency of the evidence and weight of the evidence are both

 quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380, 1997-

 Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review for a

 challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio St.3d

 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio Supreme

 Court held, "An appellate court's function when reviewing the sufficiency of the evidence

 to support a criminal conviction is to examine the evidence admitted at trial to determine

 whether such evidence, if believed, would convince the average mind of the defendant's

 guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the

 evidence in a light most favorable to the prosecution, any rational trier of fact could have

 found the essential elements of the crime proven beyond a reasonable doubt."

 {¶17} Appellant argues that the trial court erred when it denied his Crim.R. 29

 motion for acquittal. Pursuant to Crim.R. 29(A), a court "shall order the entry of the

 judgment of acquittal of one or more offenses * * * if the evidence is insufficient to sustain

 a conviction of such offense or offenses." Because a Crim.R. 29 motion questions the
 [Cite as State v. Haugh, 2024-Ohio-79.]

 sufficiency of the evidence, "[w]e apply the same standard of review to Crim.R. 29 motions

 as we use in reviewing the sufficiency of the evidence." Whether the evidence is legally

 sufficient to sustain a verdict is a question of law. Id. at ¶ 38, citing State v. Thompkins,

 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). "Sufficiency is a test of adequacy." Id.

 "We construe the evidence in a light most favorable to the prosecution and determine

 whether a rational trier of fact could have found the essential elements of the offense

 proven beyond a reasonable doubt." Id., citing State v. Jenks, 61 Ohio St.3d 259, 574

 N.E.2d 492 (1991), paragraph two of the syllabus.

 {¶18} Appellant also argues his conviction is against the manifest weight of the

 evidence. In determining whether a conviction is against the manifest weight of the

 evidence, the court of appeals functions as the "thirteenth juror," and after "reviewing the

 entire record, weighs the evidence and all reasonable inferences, considers the credibility

 of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly

 lost its way and created such a manifest miscarriage of justice that the conviction must

 be overturned and a new trial ordered." State v. Thompkins, supra, 78 Ohio St.3d at 387.

 Reversing a conviction as being against the manifest weight of the evidence and ordering

 a new trial should be reserved for only the "exceptional case in which the evidence weighs

 heavily against the conviction." Id.

 {¶19} Upon a challenge to the weight of the evidence, the issue is whether the

 jury created a manifest miscarriage of justice in resolving conflicting evidence, even

 though the evidence of guilt was legally sufficient. State v. Ashcraft, 5th Dist. Richland

 No. 2021-CA-0024, 2023-Ohio-2378, ¶ 14, citing State v. Thompkins, 78 Ohio St.3d 380,

 386–387, 678 N.E.2d 541 (1997). "Weight of the evidence" addresses the evidence's
 [Cite as State v. Haugh, 2024-Ohio-79.]

 effect of inducing belief. State v. Thompkins, supra, 78 Ohio St.3d at 386-387, 678 N.E.2d

 541 (1997), State v. Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶ 83.

 When a court of appeals reverses a judgment of a trial court on the basis that the verdict

 is against the weight of the evidence, the appellate court sits as a "thirteenth juror" and

 disagrees with the fact finder's resolution of the conflicting testimony. Thompkins at 387,

 678 N.E.2d 541, citing Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652

 (1982) (quotation marks omitted); State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202,

 865 N.E.2d 1244, ¶ 25, citing Thompkins.

 {¶20} Once the reviewing court finishes its examination, an appellate court may

 not merely substitute its view for that of the jury, but must find that " ‘the jury clearly lost

 its way and created such a manifest miscarriage of justice that the conviction must be

 reversed and a new trial ordered.' " State v. Thompkins, supra, 78 Ohio St.3d at 387,

 quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist.

 1983). The Ohio Supreme Court has emphasized: " ‘[I]n determining whether the

 judgment below is manifestly against the weight of the evidence, every reasonable

 intendment and every reasonable presumption must be made in favor of the judgment

 and the finding of facts. * * *.' " Eastley v. Volkman, 132 Ohio St.3d 328, 334, 972 N.E.2d

 517, 2012-Ohio-2179, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80,

 461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review,

 Section 603, at 191–192 (1978).

 {¶21} Appellant was found guilty upon one count of violation of a protection order

 pursuant to R.C. 2919.27(A)(1) and (B)(3)(a), a felony of the fifth degree. Those sections

 state:
 [Cite as State v. Haugh, 2024-Ohio-79.]

 (A) No person shall recklessly violate the terms of any of the

 following:

 (1) A protection order issued or consent agreement approved

 pursuant to section 2919.26 or 3113.31 of the Revised Code;

 * * * *.

 (B)(1) Whoever violates this section is guilty of violating a

 protection order.

 * * * *.

 (3) Violating a protection order is a felony of the fifth degree if

 the offender previously has been convicted of, pleaded guilty to, or

 been adjudicated a delinquent child for any of the following:

 (a) A violation of a protection order issued or consent

 agreement approved pursuant to section 2151.34, 2903.213,

 2903.214, 2919.26, or 3113.31 of the Revised Code[.]

 {¶22} R.C. 2901.22(C) defines the culpable mental state of "reckless" as:

 A person acts recklessly when, with heedless indifference to

 the consequences, the person disregards a substantial and

 unjustifiable risk that the person's conduct is likely to cause a certain

 result or is likely to be of a certain nature. A person is reckless with

 respect to circumstances when, with heedless indifference to the

 consequences, the person disregards a substantial and unjustifiable

 risk that such circumstances are likely to exist.
 [Cite as State v. Haugh, 2024-Ohio-79.]

 {¶23} Appellant argues his conduct did not violate the terms of the CPO because

 he reasonably believed the terms of a Lorain County domestic relations order "overrode

 the issues of contact with the minor child." Brief, 6. Appellant further argues sending a

 "loving note to a child from her father" cannot be a criminal violation and there is no

 evidence the parental-alienation meme was intended to be seen by Jane Doe.

 {¶24} We disagree with appellant's characterization of the evidence. As appellee

 points out, appellant was charged with one violation for a course of conduct in which he

 contacted Mary and Jane Doe twice. Appellee established Jane Doe obtained a CPO on

 March 6, 2018, which was valid for 5 years. The terms of the CPO stated appellant was

 to have no contact with Jane and Mary Doe directly or indirectly, including by delivery and

 by electronic communication. Appellant admittedly sent the package containing the

 blanket to Mary Doe at the Doe residence, although he implies this contact was permitted

 by his visitation order from Lorain County. Appellant claims there is no evidence the

 Facebook Messenger meme was posted by him, but the evidence at trial showed the

 meme was posted in a Messenger group containing appellant and Jane Doe; the meme

 stated it was posted by "Wilson;" the context of the message was consistent with

 appellant's claims against Jane; and there was a strong likelihood Jane would see the

 meme or learn of it because she and her family members were in the Facebook group.

 {¶25} We find sufficient evidence that appellant's conduct was reckless in

 contacting Mary and Jane Doe in violation of the CPO. Appellant knew of the existence

 of the CPO and blatantly disregarded its terms. See, State v. Morgan, 5th Dist. Stark No.

 2009 CA 00130, 2010-Ohio-4858, ¶ 25 [despite out-of-state domestic relations order,

 defendant was reckless in violating terms of CPO prohibiting harassing communication];
 [Cite as State v. Haugh, 2024-Ohio-79.]

 State v. Zobel, 5th Dist. Tuscarawas No. 2016 AP 03 0019, 2016-Ohio-5751, ¶ 43 [state

 presented evidence CPO was in effect when defendant was arrested, defendant knew it

 was in effect, and defendant entered onto victim's property in violation of such order];

 State v. Devoll, 5th Dist. Muskingum No. CT2023-0015, 2023-Ohio-3574, ¶¶ 13-14

 [defendant's conduct reckless when he assumed CPO had been lifted despite no

 evidence of such].

 {¶26} Moreover, we note appellant was convicted of violating the CPO in 2018, a

 fact found by the jury. His continued contact with the victims was therefore reckless as

 to violating a civil protection order. State v. Hall, 5th Dist. No. 12CAA030017, 2013-Ohio-

 660, 989 N.E.2d 111, ¶ 29, appeal allowed, cause remanded on other grounds, 135 Ohio

 St.3d 1456, 2013-Ohio-2285, 988 N.E.2d 576.

 {¶27} Viewing the evidence in a light most favorable to appellee, we find the jury

 could have found the essential elements of violation of a protection order proven beyond

 a reasonable doubt. State v. Ybarra, 5th Dist. Licking No. 17-CA-26, 2017-Ohio-9144, ¶

 26 [defendant violated CPO by driving through trailer park where victim lived]. The trial

 court therefore did not err in overruling the motion for acquittal.

 {¶28} We further find this is not an "exceptional case in which the evidence weighs

 heavily against the conviction." State v. Thompkins, 78 Ohio St.3d 380, 386–387, 678

 N.E.2d 541 (1997), quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. Based upon

 the entire record in this matter we find appellant's conviction for violation of a CPO is not

 against the manifest weight of the evidence. To the contrary, the jury appears to have

 fairly and impartially decided the matters before them. The jury heard the witnesses,

 evaluated the evidence, and was convinced of appellant's guilt.
 [Cite as State v. Haugh, 2024-Ohio-79.]

 {¶29} Appellant's two assignments of error are overruled.

 CONCLUSION

 {¶30} Appellant's two assignments of error are overruled and the judgment of the

 Tuscarawas County Court of Common Pleas is affirmed.

 By: Delaney, J.,

 Hoffman, P.J. and

 Wise, J., concur.