State v. Smith ( 2018 )

[Cite as State v. Smith, 2018-Ohio-5121.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
LANCE A. SMITH : Case No. CT2017-0066
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum
County Court, Case No. CRB
1700093
JUDGMENT: Affirmed in Part, Reversed in
Part, and Remanded.
DATE OF JUDGMENT: December 17, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
D. MICHAEL HADDOX ELIZABETH N. GABA
Prosecuting Attorney 1231 East Broad Street
By: GERALD V. ANDERSON, II Columbus, OH 43205
Assistant Prosecuting Attorney
27 N. Fifth Street
P. O. Box 189
Zanesville, OH 43702-0189
Muskingum County, Case No. CT2017-0066 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant Lance A. Smith appeals the September 18, 2017
judgment of conviction and sentence of the Muskingum County Court. Plaintiff-Appellee
is the state of Ohio.
Facts and Procedural History
{¶ 2} Smith, of Franklin County, Ohio was involved in a relationship with Jane
Doe for two years. Their relationship ended in August 2016. Doe worked at the Kent State
University's (KSU) Tuscarawas campus as a library director, but lived in Muskingum
County, Ohio.
{¶ 3} Following their breakup, Smith continued to text Doe. When she stopped
responding, Smith started to post things on the KSU Tuscarawas campus library's
Facebook page. He also created a Yelp page for the library and posted things there. On
October 25, 2016, Doe obtained a civil protection order prohibiting Smith from making
any contact with her at home or her place of employment, including all forms of electronic
contact. Smith was served with the protection order on November 16, 2016, yet continued
posting photos and comments to the Facebook and Yelp pages. Smith also posted things
about Doe on his own Facebook page, but Doe was blocked from viewing anything on
Smith’s Facebook page.
{¶ 4} In January 2017, a complaint was filed in the Muskingum County Court
charging Smith with 7 counts of violating a civil protection order (counts 1 through 7 of the
complaint), and 7 counts of telecommunications harassment (counts 8 through 14).
These first 14 counts alleged the same behavior on seven different dates, but charged
Smith under two different statutes.
Muskingum County, Case No. CT2017-0066 3
{¶ 5} Also, based on the similar behavior, Smith was charged with 1 count of
menacing by stalking pursuant to R.C. 2903.211(A)(1) and 1 count of menacing by
stalking pursuant to R.C. 2903.211(A)(2)(a), counts 15 and 16 respectively. Count 15
alleged Smith engaged in a pattern of conduct which he knew would cause Jane Doe to
believe he would cause physical harm or mental distress to Doe or her immediate family.
Count 16 alleged the same conduct, but specifically through any written communication
via computer system, network, program or telecommunication.
{¶ 6} There were two earlier cases involving similar charges against Smith for
similar behavior against Doe. Smith was originally represented by counsel on all three
cases. A resolution was reached for the first two cases, but Smith wished to proceed to
trial on this matter. One week before trial, counsel for Smith moved to withdraw and was
permitted to do so. Although he had signed a time waiver, Smith was denied a
continuance and proceeded to trial representing himself following a very limited hearing
on the same. Smith also waived his right to a jury trial. The matter therefore proceeded
to a bench trial on July 12, 2017.
{¶ 7} After hearing the evidence, the trial court found Smith not guilty of counts 6,
7, 13 and 14, but guilty of the balance of the charges. He was sentenced to 30 days in
jail.
{¶ 8} Smith filed an appeal, and the matter is now before this court for
consideration. He raises nine assignments of error as follow:
I
{¶ 9} "THE MUSKINGUM COUNTY COURT ERRED TO THE PREJUDICE OF
APPELLANT AND ABUSED ITS DISCRETION WHEN IT PRESIDED OVER A
Muskingum County, Case No. CT2017-0066 4
MISDEMEANOR CASE, AND CONVICTED APPELLANT, WHERE THE EVENTS
ALLEGED, OCCURRED IN FRANKLIN COUNTY AND/OR TUSCARAWAS COUNTY.
THE COURT ERRED BOTH IN ASSUMING SUBJECT MATTER JURISDICTION, AND
IN THE EXERCISE OF JURISDICTION. R.C. 1901.20, 1907.01, 1907.02."
II
{¶ 10} "THE MUSKINGUM COUNTY COURT ERRED TO THE PREJUDICE OF
APPELLANT AND ABUSED ITS DISCRETION WHEN IT CONVICTED APPELLANT OF
COUNTS 1 THROUGH 6, BECAUSE THERE WAS INSUFFICIENT EVIDENCE THAT
APPELLANT HAD EVER BEEN SERVED WITH THE TEMPORARY EX PARTE CSPO,
AND ANY FINDING THAT HE HAD BEEN SERVED WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE."
III
{¶ 11} "THE MUSKINGUM COUNTY COURT ERRED TO THE PREJUDICE OF
APPELLANT AND ABUSED ITS DISCRETION WHEN IT PERMITTED TRIAL COUNSEL
TO WITHDRAW FROM THE CASE NINE DAYS PRIOR TO THE JURY TRIAL, AND
FURTHER WHEN IT DENIED SMITH'S REQUEST FOR A CONTINUANCE OF THE
TRIAL. THE TRIAL COURT'S ACTIONS WERE IN VIOLATION OF CRIM.R. 44. THE
COURT FAILED TO MEET ITS OBLIGATION TO DISCUSS POSSIBLE DEFENSES
AND CIRCUMSTANCES IN MITIGATION OF THE OFFENSE CHARGED, THE RANGE
OF ALLOWABLE PUNISHMENTS, THE NATURE OF THE CHARGES AND
STATUTORY OFFENSES INCLUDED WITHIN THEM. AND SMITH'S WAIVER
NEEDED TO BE IN WRITING."
IV
Muskingum County, Case No. CT2017-0066 5
{¶ 12} "THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT AND
ABUSED ITS DISCRETION WHEN IT FOUND THE DEFENDANT-APPELLANT GUILTY
OF EACH AND ALL OF THE 14 COUNTS FOR WHICH APPELLANT WAS
CONVICTED. THE CONVICTIONS WERE NOT SUPPORTED BY SUFFICIENT
EVIDENCE, AND FURTHER, WERE AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE."
V
{¶ 13} "THE MUSKINGUM COUNTY COURT ERRED TO THE PREJUDICE OF
APPELLANT AND ABUSED ITS DISCRETION WHEN IT CONVICTED APPELLANT OF
COUNTS 8 THROUGH 14, BECAUSE THERE WAS INSUFFICIENT EVIDENCE THAT
HE HAD ENGAGED IN TELECOMMUNICATIONS HARASSMENT AS ALLEGED, R.C.
2917.21(B)(2), AND ANY FINDING THAT HE HAD WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE."
VI
{¶ 14} "THE MUSKINGUM COUNTY COURT ERRED TO THE PREJUDICE OF
APPELLANT AND ABUSED ITS DISCRETION WHEN IT CONVICTED APPELLANT OF
COUNTS 15 AND 16 BECAUSE THERE WAS INSUFFICIENT EVIDENCE THAT HE
HAD ENGAGED IN MENACING BY STALKING AS ALLEGED, R.C. 2903.211, AND ANY
FINDING THAT HE HAD WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE."
VII
{¶ 15} "R.C. 2917.21(B)(2) IS AN UNCONSTITUTIONAL STATUTE AND
VIOLATES APPELLANT'S FIRST AMENDMENT RIGHTS."
Muskingum County, Case No. CT2017-0066 6
VIII
{¶ 16} "R.C. 2903.211 IS AN UNCONSTITUTIONAL STATUTE AND VIOLATES
APPELLANT'S FIRST AMENDMENT RIGHTS."
IX
{¶ 17} "THE MUSKINGUM COUNTY COURT ERRED TO THE PREJUDICE OF
APPELLANT AND ABUSED ITS DISCRETION WHEN IT DID NOT MERGE ALL THE
COUNTS AS ALLIED OFFENSES OF SIMILAR IMPORT."
{¶ 18} For ease of discussion, we address some of Smith's errors together, as well
as out of order.
I
{¶ 19} In his first assignment of error, Smith argues the trial court was without
subject matter jurisdiction to hear this matter since he always posted from Franklin
County. We disagree.
{¶ 20} First, although Smith never argued below that the trial court lacked subject
matter jurisdiction, this defect cannot be waived. State ex rel Jones v. Suster, 84 Ohio
St.3d 70, 75, 701 N.E.2d 1002 (1998). "[T]he lack of jurisdiction can be raised at any time,
even for the first time on appeal. This is because jurisdiction is a condition precedent to
the court's ability to hear the case. If a court acts without jurisdiction, then any
proclamation by that court is void." Id. internal citations omitted.
{¶ 21} The Muskingum County Court is a municipal court. “A municipal court's
jurisdiction in criminal matters is statutorily defined as ‘territorial,’ and R.C. Chapter 1901
does not attempt to distinguish between jurisdiction of the subject matter, jurisdiction of
the person, and venue.” State v. Brown, 90 Ohio App.3d 674, 687, 630 N.E.2d 397 (1993).
Muskingum County, Case No. CT2017-0066 7
“Pursuant to R.C.1901.20(A)(1), a municipal court is authorized to adjudicate alleged
violations of any misdemeanor committed within the limits of its territory.” State v. Davis,
2nd Dist. Montgomery No. 19540, 2003-Ohio-4584, ¶ 17. In Cheap Escape Co., Inc. v.
Haddox, 120 Ohio St.3d 493, 2008-Ohio-6323, 900 N.E.2d 601, the Ohio Supreme Court
interpreted the phrase “within the limits of its territory” in R.C.1901.20(A)(1) to mean that
a municipal court has “territorial subject matter jurisdiction” over criminal matters having
a “territorial connection” to the court.”
{¶ 22} Smith also never raised any lack of personal jurisdiction. Personal
jurisdiction is established by “the presence of the person or thing involved in the litigation
within the forum's territorial boundaries or the consent [express or implied] of the party.”
State v. Haddix, 5th Dist. No. 2018CA00035, 2018-Ohio-2833 ¶ 6, citing McBride v. Coble
Express, Inc., 92 Ohio App.3d 505, 509, 636 N.E.2d 356, 359 (3rd Dist. 1993), and Nehls
v. Quad-K. Advertising, Inc., 106 Ohio App.3d 489, 495, 666 N.E.2d 579, 582 (8th
Dist.1995). "Personal jurisdiction can be waived expressly or by failure to object." Id.Because Smith never objected, he has waived the matter of personal jurisdiction.
{¶ 23} In addition, relevant to this case, R.C. 2901.12(I)(1) states:
When the offense involves a computer, computer system, computer
network, telecommunication, telecommunications device,
telecommunications service, or information service, the offender may be
tried in any jurisdiction containing any location of the computer, computer
system, or computer network of the victim of the offense, in any jurisdiction
from which or into which, as part of the offense, any writing, data, or image
Muskingum County, Case No. CT2017-0066 8
is disseminated or transmitted by means of a computer, computer system,
computer network, telecommunication, telecommunications device,
telecommunications service, or information service, or in any jurisdiction in
which the alleged offender commits any activity that is an essential part of
the offense.
{¶ 24} The record reveals that Smith posted comments and photos from his home
computer located in Franklin County. Smith sent the comments and photos via computer
to the Kent State library Facebook and Yelp accounts for the Tuscarawas County branch.
Transcript of trial (T) 59-61, 63, 68, 73-75, 78-79, 84-85, 99, 100, 102-104.
{¶ 25} On direct examination, Doe testified she lives in Muskingum County (T) 87.
She admitted, however, that she is blocked from viewing anything on Smith's Facebook
page, and that the posts made by Smith to the library Facebook and Yelp accounts were
either brought to her attention by others, or she went looking for them. T 59-60, 73-75,
100-102. In other words, Smith never directly disseminated anything to Doe in Muskingum
County.
{¶ 26} However, Smith was also charged with two counts of menacing by stalking.
As the state points out, Doe felt threatened and feared for her daughter's safety as well
as her own safety while at home in Muskingum County. The source of her fear stemmed
from Smith's continuous postings to C.B's employer's Facebook and Yelp pages, as well
as other behavior that pre-dated the postings, and was related to the menacing by stalking
charges. (T) 90-97.
{¶ 27} R.C. 2901.12(H)(1) states:
Muskingum County, Case No. CT2017-0066 9
(H) When an offender, as part of a course of criminal conduct,
commits offenses in different jurisdictions, the offender may be tried for all
of those offenses in any jurisdiction in which one of those offenses or any
element of one of those offenses occurred. Without limitation on the
evidence that may be used to establish the course of criminal conduct, any
of the following is prima-facie evidence of a course of criminal conduct:
(1) The offenses involved the same victim, or victims of the same
type or from the same group.
***
{¶ 28} Given the forgoing, we find therefore that jurisdiction was proper in the
Muskingum County Court. The first assignment of error is overruled.
III
{¶ 29} In the caption of his third assignment of error, Smith argues the trial court
abused its discretion when it permitted his retained counsel to withdraw nine days before
trial, denied him a continuance and then failed to adequately inquire regarding Smith's
desire to represent himself. The argument following the assignment of error, however,
addresses only the trial court's failure to adequately inquire regarding Smith's desire to
represent himself. We therefore limit our analysis to that issue, and we agree.
{¶ 30} Whether appellant waived his right to counsel is an issue that we review de
novo. State v. Nelson, 2016-Ohio-8064, 75 N.E.3d 785, ¶ 17 (1st Dist.)
{¶ 31} The Sixth Amendment to the United States Constitution and Section 10,
Article I of the Ohio Constitution provides that a criminal defendant has a right to counsel.
Muskingum County, Case No. CT2017-0066 10
Crim.R. 44(A) provides that a defendant is entitled to counsel “unless after being fully
advised of his right to assigned counsel, he knowingly, intelligently, and voluntarily waives
his right to counsel.”
{¶ 32} A criminal defendant also has the constitutional right to waive counsel and
to represent himself at trial. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d
562 (1975). However, “the Constitution * * * require[s] that any waiver of the right to
counsel be knowing, voluntary, and intelligent * * *.” Iowa v. Tovar, 541 U.S. 77, 87–88,
124 S.Ct. 1379, 158 L.Ed.2d 209 (2004). “In order to establish an effective waiver of [the]
right to counsel, the trial court must make sufficient inquiry to determine whether
defendant fully understands and intelligently relinquishes that right.” State v. Gibson, 45
Ohio St.2d 366, 345 N.E.2d 399 (1976), paragraph two of the syllabus. The defendant
must make an intelligent and voluntary waiver with the knowledge he will have to
represent himself, and that there are dangers inherent in self-representation. State v.
Ebersole, 107 Ohio App.3d 288, 293, 668 N.E.2d 934 (3rd Dist.1995), citing Faretta v.
California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
{¶ 33} In Gibson, supra, the Ohio Supreme Court applied the test set forth in Von
Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948), which established the
requirements for a sufficient pretrial inquiry by the trial court into a waiver of counsel:
To be valid such waiver must be made with an apprehension of the
nature of the charges, the statutory offenses included within them, the range
of allowable punishments thereunder, possible defenses to the charges and
circumstances in mitigation thereof, and all other facts essential to a broad
Muskingum County, Case No. CT2017-0066 11
understanding of the whole matter. A judge can make certain that an
accused's professed waiver of counsel is understandingly and wisely made
only from a penetrating and comprehensive examination of all the
circumstances under which such a plea is tendered.
{¶ 34} State v. Gibson, 45 Ohio St.2d 366, 377, 345 N.E.2d 399 (1976).
{¶ 35} “Presuming waiver from a silent record is impermissible. The record must
show, or there must be an allegation and evidence which show, that an accused was
offered counsel but intelligently and understandingly rejected the offer. Anything less is
not waiver.” Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70(1962).
{¶ 36} Smith argues in part that his waiver had to be in writing. We reject this
portion of Smith's argument, as a waiver in writing is not required. Rather, the standard is
substantial compliance with Crim.R. 44(A). State v. Cline, 103 Ohio St.3d 471, 2004-Ohio-
5701, 816 N.E.2d 1069. However, no such compliance took place here. We have been
provided with one pretrial transcript which consists of 4 pages. At no point did the trial
court engage Smith in a conversation regarding the nature of the charges, the statutory
offenses included within them, allowable punishments, possible defenses and mitigation,
nor any of the dangers or folly of representing himself. The record is in fact silent, and we
may not therefore presume waiver. Accordingly, we find there was insufficient inquiry to
ensure Smith knowingly, intelligently and voluntarily waived his right to counsel. We
therefore remand this matter for proceedings consistent with the entirety of this opinion.
{¶ 37} The third assignment of error is sustained.
Muskingum County, Case No. CT2017-0066 12
II, IV, V, VI
{¶ 38} In his second, fourth, fifth, and sixth assignments of error, Smith argues his
convictions are against the sufficiency and manifest weight of the evidence. We agree in
part.
{¶ 39} While the concepts of a conviction; 1) being against the manifest weight of
the evidence, and 2) being supported by insufficient evidence are often raised and
argued together, they are distinct and must be considered as such.
Applicable Law
{¶ 40} On review for sufficiency, a reviewing court is to examine the evidence at
trial to determine whether such evidence, if believed, would support a conviction. State
v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). "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." Jenks at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S.
307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). On review for manifest weight, a reviewing
court is to examine the entire record, weigh the evidence and all reasonable inferences,
consider the credibility of witnesses and determine "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 reversed and a new trial ordered." State v. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). See also, State v. Thompkins, 78 Ohio
St.3d 380, 678 N.E.2d 541 (1997). The granting of a new trial "should be exercised only
in the exceptional case in which the evidence weighs heavily against the conviction."
Martin at 175.
Muskingum County, Case No. CT2017-0066 13
{¶ 41} When a manifest weight assignment of error is sustained the case is
remanded for a new trial. Appellant would have no argument that he is barred from retrial
based upon double jeopardy grounds. This court has found grounds for a remand based
upon the argument in assignment of error three that the trial court did not properly address
appellant with regard to representing himself at trial. Because the case is being remanded
for further proceedings, we find the manifest weight assignments would not change such
remand and are premature.
{¶ 42} However, the assignments of error involving the sufficiency of the evidence
must be considered at this time. Appellant was tried and convicted on the evidence
presented by the state. If on appeal a claim of sufficiency is sustained the bar against
double jeopardy would preclude the state from proceeding to a second trial against
appellant on that count.
Smith’s Convictions
{¶ 43} Smith was convicted of five counts of violating a civil protection order
pursuant to R.C. 2919.27(A)(2). This section requires the state to prove that the defendant
recklessly violated a protection order issued pursuant to R.C. 2903.214, and further, all
the requirements of R.C. 2903.214, including, relevant to Smith's argument here, that the
defendant was duly served with the order. State v. Smith, 136 Ohio St.3d 1, 2013-Ohio-
1698, 989 N.E.2d 972, ¶ 16, 20.
{¶ 44} Smith was also convicted of five counts of telecommunication harassment
under R.C. 2917.21(B)(2), which makes it a crime to “make or cause to be made a
telecommunication, or permit a telecommunication to be made from a
telecommunications device under the person's control, with purpose to abuse, threaten,
Muskingum County, Case No. CT2017-0066 14
or harass another person.” “[F]or conduct to rise to the level of criminal harassment under
this section of the statute, the accused must have intended to alarm or to cause
substantial emotional distress to the recipient, not just to annoy [him].” State v. Ellison,
178 Ohio App.3d 734, 2008-Ohio-5282, 900 N.E.2d 228, ¶ 14.
{¶ 45} Finally, Smith was found guilty of two counts of menacing by stalking, the
first pursuant to R.C. 2903.211(A)(1) and the second pursuant to R.C. 2903.211(A)(2)(a).
{¶ 46} R.C. 2903.211(A)(1) provides in relevant part:
No person by engaging in a pattern of conduct shall knowingly cause
another person to believe that the offender will cause physical harm to the
other person or a family or household member of the other person or cause
mental distress to the other person or a family or household member of the
other person.
{¶ 47} R.C. 2903.211(A)(2)(a) states:
(2) No person, through the use of any form of written communication
or any electronic method of remotely transferring information, including, but
not limited to, any computer, computer network, computer program,
computer system, or telecommunication device shall post a message or use
any intentionally written or verbal graphic gesture with purpose to do either
of the following:
(a) Violate division (A)(1) of this section;
Muskingum County, Case No. CT2017-0066 15
{¶ 48} As an initial matter, Smith argues his convictions should be reversed
because the trial court did not understand Facebook or Yelp or how the sites work. We
reject this argument because throughout her testimony, the trial court asked questions of
Doe when it needed clarification of how these social media platforms operate, and Doe
provided answers to the court's satisfaction. (T) 54-94. Smith further lodged no objection
to Doe providing explanations to the court.
Assignment of Error II – Service of Protection Order
{¶ 49} Moving on to Smith's remaining sufficiency arguments, the second
assignment of error argues the state failed to prove he violated a civil protection order
because it did not prove he had been served with the protection order. We disagree.
{¶ 50} State's exhibit 10 contains Deputy Brandon Hamilton's notations following
his December 5, 2016 interview with Smith. These notes indicate that Smith
acknowledged being served with the protection order on November 16, 2016 during a
court hearing. Deputy Hamilton testified at trial, and Exhibit 10 was entered into evidence
with objection by Smith only as to an unrelated issue. (T) 121. We therefore find the state
produced sufficient evidence to prove Smith was served with the civil protection order,
and overrule Smith’s second assignment of error.
Assignment of Error VI – Menacing by Stalking
{¶ 51} Smith's sixth assignment of error argues the state presented insufficient
evidence to prove he engaged in menacing by stalking pursuant to R.C. 2903.211(A)(1)
and (A)(2)(a). We disagree.
{¶ 52} Smith was charged in both counts of menacing by stalking with engaging in
a pattern of behavior from October 29, 2016 to December 31, 2016. Doe testified that this
Muskingum County, Case No. CT2017-0066 16
behavior was not limited to Smith's posts to Facebook and Yelp, but also included Smith's
act of posting a personal ad on Craigslist posing as Doe, soliciting men, and providing
her address, along with Smith's statements to Doe that the police could not help her, and
that he was the "dragon" who was going to "attack." (T) 88-96. Due to these actions by
Smith, Doe became fearful, sent her daughter to live with her aunt and felt compelled to
purchase a taser for personal protection. (T) 95, 97. Smith further continued his activities
beyond service of the protection order. We find sufficient evidence to support a finding
that Smith engaged in this conduct knowing it would cause Doe to believe he would cause
physical harm or mental distress to her or a family member. Additionally, he did these
things through a computer or telecommunications device. We therefore find the state
produced sufficient evidence to prove each count of menacing by stalking as contained
in counts 15 and 16.
Assignments of Error IV and V,
{¶ 53} Smith’s fourth assignment of error argues, without analysis that a finding of
guilty on all 14 counts was against sufficiency of the evidence. His fifth assignment of
error argues his convictions for telecommunications harassment are all against the
sufficiency of the evidence.
{¶ 54} First, as to the five convictions for violating a civil protection order and five
convictions of telecommunications harassment, as noted above, Smith was served with
the protection order on November 16, 2016. The order included a prohibition against
Smith having any contact with Doe's place of employment. State's exhibit 8.
Muskingum County, Case No. CT2017-0066 17
{¶ 55} Next, Smith was charged twice for each social media post he made. Once
for violating the protection order and once for telecommunications harassment. We
address each pair of convictions in turn.
{¶ 56} Count one of the complaint charges a protection order violation and count
eight charges telecommunications harassment occurring on or about November 25, 2016.
This pair of charges stem from state's exhibits 1 and 3, which are two Yelp posts made
by Smith to the KSU Tuscarawas campus Yelp page on November 23 and 25, 2016. (T)
73-74. Both posts include photos from the May 4, 1970 Kent State shootings. Exhibit 1
includes the comment by Smith "Stand down or else." Exhibit 3 includes different photos
from the May 4, 1970 shootings and a comment having nothing to do with those photos,
but rather Smith's opinion regarding the fact that the KSU Tuscarawas campus library
keeps a cat in the library. He additionally mentions that "[s]taff needs social media
engineering response training really bad as to not make things worse!! More later!!!" Doe
testified these posts "caused panic amongst our students because he's posting pictures
of dead students and telling us to stop." (T) 74.
{¶ 57} This certainly is sufficient evidence to show Smith violated the protection
order as he was to have no contact with Doe or Doe's place of employment either in
person or electronically. We therefore find the evidence sufficient to support Smith's
conviction on count one. However, we find this evidence insufficient to support a
conviction on count eight, telecommunications harassment, as there is nothing in this post
directly threatening or harassing Doe.
{¶ 58} Counts two and nine of the complaint charge violation of a protection order
and telecommunications harassment respectively. These counts are based on state's
Muskingum County, Case No. CT2017-0066 18
exhibit 2. (T) 74-75. This exhibit shows Smith's November 26, 2016 comment on a post
by KSU Tuscarawas campus library's Facebook page. The library posted a photo of the
cat that lives in the library. Smith posted a comment below the photo - his opinion that the
animal's captivity in the library "seems like animal abuse."
{¶ 59} Again, this is sufficient evidence of violation of a protection order. We find,
therefore, sufficient evidence to support count two. We do not, however, see a comment
about the library mascot to be either threatening or harassing to Doe, and thus find
insufficient evidence to support a conviction on count nine.
{¶ 60} Counts three and ten pertain to violation of a protection order and
telecommunications harassment alleged to have occurred on November 27, 2016. We
have closely examined the transcript and exhibits in this matter and find no exhibit, nor
testimony pertaining to any activities by Smith on November 27, 2016. We therefore find
convictions on counts three and ten are not supported by sufficient evidence.
{¶ 61} Counts four and eleven pertain to violation of a protection order and
telecommunications harassment alleged to have occurred on December 11, 2016. This
date corresponds with one photo on state's exhibit 4 which Smith posted on the KSU
Tuscarawas campus Yelp page. The photo is the cover of a book titled "Nympho
Librarian." There is no comment on the photo. This evidence is sufficient to support
Smith's conviction for count four, violating a protection order, but insufficient to support a
conviction for count eleven, telecommunications harassment. We note that state’s exhibit
4 also contains a screen shot from appellant’s own Facebook page containing some
nonsensical yet somewhat aggressive statements. However, Doe testified she was
blocked from viewing appellant’s Facebook page, and had friends obtain this information.
Muskingum County, Case No. CT2017-0066 19
(T) 105-106. We therefore disregard this portion of exhibit 4, basing our finding solely on
the book cover posted to the KSU library Yelp page.
{¶ 62} Counts five and twelve allege violation of a protection order and
telecommunications harassment which occurred on December 18, 2016. These counts
correspond to state's exhibit 5 which is three photos of Doe which Smith posted to the
KSU Tuscarawas campus Yelp page. The first two show Doe in lingerie, and the third
shows Doe sitting in such a manner that the viewer can see up her skirt. On the first photo
Smith wrote "Totally innocent looking librarian. Huh!" On the second, Smith wrote
"Innocent oh yea!" He posted no comment on the third. There can be no other reason to
post such photos other than to harass, abuse and embarrass Doe. We thus find this
evidence sufficient to support Smith's convictions on both counts five and twelve.
{¶ 63} In summary, we find insufficient evidence to support Smith’s convictions on
counts three, eight, nine, ten and eleven. We find Smith’s convictions on counts one, two,
four, five, twelve, fifteen and sixteen, however supported by sufficient evidence. Smith’s
second and sixth assignments of error are overruled, his fourth and fifth assignments of
error are overruled in part and sustained in part.
VII, VIII
{¶ 64} In his seventh and eighth assignments of error, Smith argues R.C. 2917.21
and R.C. 2903.211 are unconstitutional as they restrict his First Amendment rights to free
speech. Based upon our remand of the case on previous assignments of error we find
the seventh and eighth assignments of error premature.
Muskingum County, Case No. CT2017-0066 20
IX
{¶ 65} In his final assignment of error, Smith argues the trial court erred when it
failed to merge convictions as allied offenses of similar import. Given our resolution of the
preceding assignments of error, an analysis of allied offenses is premature at this
juncture, and we therefore decline to address the same.
{¶ 66} In summary, the case is remanded based upon the failure of the trial court
to adequately advise appellant with regard to representing himself at trial, pursuant to
State v. Gibson, supra. However, not all of the counts remain viable. We find that the
record reflects that there was insufficient evidence presented on Counts three, eight, nine,
ten, and eleven. Additionally, at trial the court acquitted appellant on Counts six, seven,
thirteen, and fourteen. Therefore the case is sent back on Counts one, two, four, five,
twelve, fifteen, and sixteen.
Muskingum County, Case No. CT2017-0066 21
{¶ 67} The judgement of the Muskingum County Court is affirmed in part, reversed
in part and remanded for proceedings consistent with this opinion.
By Wise, Earle, J.
Hoffman, P.J. and
Delaney, J. concur.
EEW/rw
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
LANCE A. SMITH :
:
Defendant-Appellant : CASE NO. CT2017-0066
For the reasons stated in our accompanying Memorandum-Opinion, the judgment
of the Muskingum County Court, is affirmed in part, reversed in part and remanded for
proceedings consistent with this opinion. Costs to appellee.