State v. Jervis , 2014 Ohio 3218 ( 2014 )

[Cite as State v. Jervis, 2014-Ohio-3218.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 13-CA-97
:
WILLIAM JERVIS :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County
Municipal Court, Case No. 12-CRB-
2598
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: July 18, 2014
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
AMY S. DAVISON ERIC J. HOFFMAN
40 West Main St. 338 South High Street
Newark, OH 43055 Columbus, OH 43215
Licking County, Case No. 13-CA-97 2
Delaney, J.
{¶1} Defendant-Appellant William Jervis appeals the September 26, 2013
Judgment of Conviction of the Licking County Municipal Court. Plaintiff-Appellee is the
State of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} Attorney Jennifer Amos came in contact with Defendant-Appellant William
Jervis when Jervis contacted her office to schedule an appointment for an initial
consultation with Verne Lindenmayer, the husband of Jervis's girlfriend, Stephanie
Lindenmayer. Verne and Stephanie Lindenmayer were married, but separated, and
wanted to get a divorce. Jervis was in a romantic relationship with Stephanie
Lindenmayer.
{¶3} The Lindenmayers were divorced. In 2012, Amos filed a post-decree
motion on Verne Lindenmayer's behalf requesting the termination or modification of
spousal support.
{¶4} On November 2, 2012, Amos served a subpoena upon Jervis requesting a
copy of his business records for 12 months. On that same day, Amos received a fax
sent by Jervis that stated in the notes section, "Eat Shit!" The third and fourth pages of
the fax were a copy of the subpoena served on Jervis on November 2, 2012.
{¶5} Amos contacted the Newark Police Department. Amos was familiar with
Jervis's behavior and wanted to document the fax in case Jervis's conduct escalated.
She also wanted his conduct to stop. She had received previous emails and phone calls
from Jervis in the past where he expressed he was not happy with Amos. She had
previously sent him an email asking him to stop.
Licking County, Case No. 13-CA-97 3
{¶6} Jervis did not deny sending the fax. Jervis stated he sent the fax telling
Amos to "eat shit" because he was highly upset when he was served with the
subpoena. Jervis felt he had nothing to do with the domestic relations case and Amos's
records request was outrageous. Jervis did not contact an attorney to respond to the
subpoena nor did he file a motion with the domestic relations court to quash the
subpoena.
{¶7} On November 29, 2012, Amos received another fax from Jervis. The
notes section of the fax stated, "You are a POS." The third page of the fax was a
photograph of Jervis looking at the camera with his middle finger raised. Amos
recognized Jervis in the photograph.
{¶8} Jervis sent the November 29, 2012 fax to Amos because he learned from
calling the domestic relations court that Amos filed a motion for contempt for Jervis's
failure to produce the his records.
{¶9} Amos contacted the Newark Police Department. Officer Jared Angle of the
Newark Police Department took a report from Amos on November 30, 2012. Officer
Angle telephoned Jervis that same day. Jervis recorded the phone call between himself
and Officer Angle. The recorded phone call was submitted as an exhibit at trial. During
the phone call, Officer Angle asked Jervis to stop contacting Amos. Jervis said that he
felt Amos was "fucking" with him and he was going to rock her world when he
subpoenaed her records. Jervis stated in the phone call with Officer Angle that he
meant every word he said and "a picture is worth one thousand words." He said to
Officer Angle that instead of faxing Amos, he would put them in the U.S. mail. Officer
Angle explained that Jervis could be charged with telecommunication harassment.
Licking County, Case No. 13-CA-97 4
Jervis stated he noted the Officer's statement. Later in the conversation, Jervis said,
"now, I'm going to take whatever economic resources that I have and I'm going to rock
her fucking world because I'm sick of her bullshit."
{¶10} After Officer Angle's phone conversation with Jervis, Officer Angle
completed his police report and it was submitted to the Law Director for review.
{¶11} By consent agreement between Amos and Jervis, Amos obtained a civil
stalking protection order against Jervis for a period of two years.
{¶12} On December 5, 2012, Jervis was charged with one count of
telecommunication harassment, a first-degree misdemeanor in violation of R.C.
2917.21(B), and one count of menacing, in violation of R.C. 2903.22. Jervis pleaded not
guilty to the charges.
{¶13} The trial court dismissed the menacing charge at the request of the State.
The matter went to trial before a jury on September 26, 2013.
{¶14} The jury found Jervis guilty of one count of telecommunication
harassment. The trial court imposed a 180-day jail sentence, with 150 days suspended
and a $250.00 fine. Jervis was placed on probation, ordered to undergo mental health
treatment, maintain employment, and to have no contact with Amos, her family, or her
employees.
{¶15} Jervis appealed his conviction and sentence to this court. The trial court
granted a stay of proceedings.
Licking County, Case No. 13-CA-97 5
ASSIGNMENT OF ERROR
{¶16} Jervis raises one assignment of error:
{¶17} “DEFENDANT’S CONVICTION WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE AND THERE IS INSUFFICIENT EVIDENCE TO
SUPPORT THE SAME.”
ANALYSIS
{¶18} Jervis argues his conviction for telecommunication harassment was
against the manifest weight and sufficiency of the evidence. We disagree.
{¶19} 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.”
{¶20} 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
Licking County, Case No. 13-CA-97 6
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.
{¶21} Jervis was convicted of telecommunication harassment, in violation of
R.C. 2917.21(B). The statute reads:
No person shall 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, or harass
another person.
A person acts “purposely” when “it is his specific intention to cause a certain result, or,
when the gist of the offense is a prohibition against conduct of a certain nature,
regardless of what the offender intends to accomplish thereby, it is his specific intention
to engage in conduct of that nature.” R.C. 2901.22(A). When adjudicating a charge of
telephone harassment, the key issue is not whether the alleged victim is annoyed or
otherwise affected by the call; rather, the purpose of the person who made the call is at
the heart of the offense. State v. Bonifas, 91 Ohio App.3d 208, 211–212, 632 N.E.2d
531 (3rd Dist.1993). The mere use of profanity in a telecommunication does not
transform that telecommunication into harassment for purposes of the statute. State v.
Patel, 7th Dist. Belmont No. 03 BE 41, 2004-Ohio-1553, ¶ 48.
Licking County, Case No. 13-CA-97 7
{¶22} Jervis argues the evidence at trial revealed that his purpose in sending the
two faxes to Amos was to express his frustration with the subpoena and the motion for
contempt. He contends the evidence demonstrated that his intention was to stand up to
Amos, whom he felt was making his girlfriend's life miserable. At trial, he testified that he
should have handled the situation differently. Jervis states there was no evidence to
show that his specific intent was to abuse, threaten, or harass Amos when he sent her
the two faxes.
{¶23} The State argues Officer Angle's telephone conversation with Jervis
provides evidentiary support that Jervis's purpose was to harass or abuse Amos when
Jervis sent the two faxes to Amos. In the recorded telephone call, Jervis stated to
Officer Angle that he meant every word he wrote on the faxes and that a picture was
worth one thousand words. He stated that "now, I'm going to take whatever economic
resources that I have and I'm going to rocking her fucking world because I'm sick of her
bullshit."
{¶24} When Jervis received the subpoena, he did not consult an attorney to
respond to the subpoena or file a motion to quash the subpoena. When he learned of
the motion for contempt, he again did not consult an attorney or respond to the motion.
He instead sent two faxes to Amos that stated, "eat shit" and "you are a POS," attaching
a photograph of Jervis giving the middle finger. Jervis acknowledged at trial that he did
not handle the situation appropriately.
{¶25} We have reviewed the entire record and we find the evidence in this case
supports the determination of the jury. Jervis testified that his purpose in sending the
two faxes to Amos was not to harass, abuse, or threaten Amos; he sent the faxes to
Licking County, Case No. 13-CA-97 8
express his frustration. However, Jervis's phone call with Officer Angle where Jervis
states that he is going to use his economic resources to rock Amos's world supports the
jury's conclusion that Jervis's purpose in sending the faxes was to harass, threaten, or
abuse Amos. Amos had previously received emails and phone calls from Jervis where
he expressed he was not happy with Amos. In reviewing the legal sufficiency of the
evidence to support a verdict by the trier of fact, it is the mind of the trier of fact, rather
than the reviewing court, that must be convinced. State v. Thomas, 70 Ohio St.2d 79,
434 N.E.2d 1356 (1982). In applying this standard of review, the question of credibility
of conflicting testimony and the weight to be accorded certain evidence are matters left
primarily to the trier of fact. State v. Fox, 5th Dist. Licking No. 13-CA-71, 2014-Ohio-
1652, ¶ 18 citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). The trier
of fact is in a better position to observe the witnesses' demeanor and weigh their
credibility. Id. at ¶ 36.
{¶26} Jervis's conviction is supported by sufficient evidence and is not against
the manifest weight of the evidence. Jervis's sole Assignment of Error is overruled.
Licking County, Case No. 13-CA-97 9
CONCLUSION
{¶27} The judgment of the Licking County Municipal Court is affirmed.
By: Delaney, J.,
Gwin, P.J. and
Farmer, J., concur.