State v. Kemery ( 2011 )

[Cite as State v. Kemery, 2011-Ohio-6715.]
[Nunc pro tunc opinion. Please see original at 2011-Ohio-6043.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. Patricia A. Delaney, J.
-vs- :
:
LEE DARREN KEMERY : Case No. 11-CA-55
:
Defendant-Appellant : NUNC PRO TUNC OPINION
CHARACTER OF PROCEEDING: Appeal from the Municipal Court, Case
No. 10CRB02521
JUDGMENT: Affirmed
DATE OF JUDGMENT: December 22, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
TRICIA M. MOORE DAVID B. STOKES
40 West Main Street 21 West Church Street
Newark, OH 43055 Suite 206
Newark, OH 43055
Licking County, Case No. 11-CA-55 2
Farmer, J.
{¶1} On November 12, 2010, appellant, Darren Kemery, was charged with
violating a civil protection order in violation of R.C. 2919.27. The civil protection order
was issued on July 9, 2010 for the benefit of appellant's ex-wife, Danielle Rowan. On
October 23, 2010, appellant sent an email to Ms. Rowan's grandparents which included
various comments about Ms. Rowan, and encouraged the grandparents to relay the
contents of the email to her.
{¶2} A bench trial commenced on April 28, 2011. By judgment of conviction
filed same date, the trial court found appellant guilty and sentenced him to ninety days
in jail, eighty-seven days suspended.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶4} "THE TRIAL COURT COMMITTED HARMFUL ERROR AND/OR
ABUSED ITS DISCRETION BY FINDING APPELLANT GUILTY OF THE CHARGE
HEREIN."
II
{¶5} "THE TRIAL COURT COMMITTED HARMFUL ERROR AND/OR
ABUSED ITS DISCRETION IN DENYING APPELLANT'S TIMELY MOTION FOR
ACQUITTAL, PER O CRIM R 29(B)."
I, II
Licking County, Case No. 11-CA-55 3
{¶6} Appellant claims the trial court erred in finding him guilty of violating the
civil protection order and in denying his Crim.R. 29 motion for acquittal. We disagree.
{¶7} 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 (1991), 61 Ohio St.3d 259. "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 (1979), 443 U.S. 307. 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 (1983), 20 Ohio App.3d 172, 175. See also, State
v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. 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.
{¶8} Crim.R. 29 governs motion for acquittal. Subsection (A) states the
following:
{¶9} "The court on motion of a defendant or on its own motion, after the
evidence on either side is closed, shall order the entry of a judgment of acquittal of one
or more offenses charged in the indictment, information, or complaint, if the evidence is
insufficient to sustain a conviction of such offense or offenses. The court may not
Licking County, Case No. 11-CA-55 4
reserve ruling on a motion for judgment of acquittal made at the close of the state's
case."
{¶10} The standard to be employed by a trial court in determining a Crim.R. 29
motion is set out in State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus:
{¶11} "Pursuant to Crim.R. 29(A), a court shall not order an entry of judgment of
acquittal if the evidence is such that reasonable minds can reach different conclusions
as to whether each material element of a crime has been proved beyond a reasonable
doubt."
{¶12} Appellant argues the email he sent to Ms. Rowan's grandparents did not
violate the civil protection order. The complaint filed November 12, 2010 alleged the
following:
{¶13} "One Kemery, Lee D. did unlawfully and recklessly violate the terms of a
protection order issued or consent agreement approved pursuant to section 2919.26 or
3113.31 of the Revised Code contrary to Section 2919.27 ORC a misdemeanor first
degree of the degree."
{¶14} The specific terms of the civil protection order issued July 9, 2010 included
the following orders:
{¶15} "TERMS AND CONDITIONS OF ORDER (Mark all that are applicable):
{¶16} "01 The subject is restrained from assaulting, threatening, abusing,
harassing, following, interfering, or stalking the protected person and/or the child(ren) of
the protected person.
Licking County, Case No. 11-CA-55 5
{¶17} "04 The subject is required to stay away from the residence, property,
school, or place of employment of the protected person or other family or household
member.
{¶18} "05 The subject is restrained from making any communication with the
protected person, including but not limited to personal, written, or telephone contact, or
their employer, employees, or fellow workers, or others with whom the communication
would be likely to cause annoyance or alarm the victim.
{¶19} "07 The subject is prohibited from possessing an/or purchasing a firearm
or other weapon.
{¶20} "08 See the Miscellaneous Field for comments regarding the specific
terms and conditions of this Order.
{¶21} "Miscellaneous comments: Respondent may be within 500 feet of
Petitioner for purposes of child exchanges, so long as he has no contact with
Petitioner."
{¶22} The October 23, 2010 email from appellant to Ms. Rowan's grandparents
included various comments about her and a threat to press contempt charges against
her. It specifically stated "[y]ou can relay this to Danielle":
{¶23} "Well Danni has one (sic) the first battle.
{¶24} "Lynette probably slept with this judge or slept with Steiner again and had
him talk to this dishonest judge to get this kind of decision.
{¶25} "Danni is in contempt of court.
{¶26} "I am to have first refusal and Danni is working.
{¶27} "So were (sic) is my Carlee?
Licking County, Case No. 11-CA-55 6
{¶28} "She it (sic) to be with her father if her mother has to work on my days off!
{¶29} "I am pressing contempt of court charges against Danielle, I have about
20 documented (sic) and I am fileling (sic) charges against your daughter for tampering
with documents too.
{¶30} "Its (sic) really a shame that Danielle slept with so many guys that she
doesn't know who Vincent's father is. I'm so glad I am n***.
{¶31} "At least she got the slut thing honestly from her mother.
{¶32} "I feek (sic) sorry for Pat when she takes hime (sic) for all he is worth, like
her previous two husbands.
{¶33} "You can relay this to Danielle.
{¶34} "And I know you also don't love the grand children like you should or you
would quite (sic) smoking around them.
{¶35} "Children's services have been notified about that and several other
things.
{¶36} "It is by far not over!!"
{¶37} Ms. Rowan's, grandfather, Francis Downing, testified he received the
email and forwarded it to his granddaughter. T. at 15, 17.
{¶38} At the conclusion of the bench trial, the trial court made the following
finding:
{¶39} "Um, the Court finds particularly important in this case, uh, the statement
you can, you can relay this to Danielle. Uh, I would agree with Mr. Stokes that if Mr.
Kemery had sent a message, basically saying Ms. Rowan is a terrible person and here
are all the reasons why and these are all the reasons why she's, uh, horrible, and I can't
Licking County, Case No. 11-CA-55 7
stand her um, and nothing more, that there wouldn't be a violation here. Uh, but I think,
um, and the Court finds that his comment you can relay this to Danielle, consciously
disregarded a known risk, that Mr. Downing would forward the message along. In fact,
it almost invited him to. And while I understand the argument that the defense counsel
made regarding the differentiations between the words can and may, uh, that may goes
towards perhaps intent or maybe even knowing standard, but he certainly consciously
disregarded a known risk that Mr. Downing would forward the message along to
Danielle. And so while I, I believe this is a technical violation, it's a violation,
nonetheless." T. at 32.
{¶40} We concur with the trial court's analysis. There was no reason to subject
the Downings to the ramblings of the email except to convey the message to Ms.
Rowan in contravention of the mandates of the civil protection order.
{¶41} Upon review, we find sufficient evidence to find appellant guilty of violating
the civil protection order, and no manifest miscarriage of justice.
{¶42} Assignments of Error I and II are denied.
Licking County, Case No. 11-CA-55 8
{¶43} The judgment of the Municipal Court of Licking County, Ohio is hereby
affirmed.
By Farmer, J.
Hoffman, P.J. and
Delaney, J. concur.
s/ Sheila G. Farmer______________
s/ William B. Hoffman_____________
s/ Patricia A. Delaney_____________
JUDGES
SGF/sg 1207
[Cite as State v. Kemery, 2011-Ohio-6715.]
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
LEE DARREN KEMERY :
:
Defendant-Appellant : CASE NO. 11-CA-55
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Municipal Court of Licking County, Ohio is affirmed. Costs to appellant.
s/ Sheila G. Farmer______________
s/ William B. Hoffman_____________
s/ Patricia A. Delaney_____________
JUDGES