Brecksville v. Sadaghiani , 2021 Ohio 2443 ( 2021 )

[Cite as Brecksville v. Sadaghiani, 2021-Ohio-2443.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
CITY OF BRECKSVILLE, :
Plaintiff-Appellee, :
No. 109992
v. :
SHIREEN D. SADAGHIANI, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 15, 2021
Criminal Appeal from the Garfield Heights Municipal Court
Case Nos. CRB-1800302, CRB-1800303, and CRB-1800304
Appearances:
Sergio DiGeronimo, for appellee.
Rick L. Ferrara, for appellant.
KATHLEEN ANN KEOUGH, J.:
Defendant-appellant, Shireen Sadaghiani (“Sadaghiani”), appeals
from the trial court’s judgment, rendered after a bench trial, finding her guilty of
one count each of making a false alarm, aggravated menacing, and
telecommunications harassment, and sentencing her to 180 days in jail,
suspended; a $250 fine; and one year of inactive probation. For the reasons that
follow, we affirm.
I. Background
On February 9, 2018, the city of Brecksville charged Sadaghiani in
Garfield Hts. M.C. No. CRB-1800302 with one count of making a false alarm in
violation of Brecksville Codified Ordinances 509.07(a)(3); in Garfield Hts. M.C.
No. CRB-1800303 with one count of aggravated menacing in violation of
Brecksville Codified Ordinances 537.05(a); and in Garfield Hts. M.C. No. CRB-
1800304 with one count of telecommunications harassment in violation of
Brecksville Codified Ordinances 537.10(a)(6). All counts were first-degree
misdemeanors.
After Sadaghiani failed to appear at the arraignment set for
February 21, 2018, the trial court rescheduled the matter for a second arraignment
on March 21, 2018. Sadaghiani again failed to appear, and the court issued a
warrant for her arrest. On February 18, 2020, counsel for Sadaghiani entered a
notice of appearance and not guilty plea on Sadaghiani’s behalf, and advised the
court that “Defendant waives all time limitations under the Ohio Rules of Criminal
Procedure.” In August 2020, the matter proceeded to a bench trial, where the
following evidence was adduced.
Raymond Voldan (“Voldan”) testified that he met Sadaghiani in
2011, when she was dating his friend James Zambataro, Jr. (“James Jr.”). Voldan
and James Jr. lived in a duplex — James Jr. upstairs and Voldan downstairs.
Voldan said that Sadaghiani would sometimes visit him, and he gave her his cell
phone number.
Voldan testified that Sadaghiani began sending him harassing text
messages in 2011, after the relationship between Sadaghiani and James Jr. ended.
Voldan admitted that he initially replied to Sadaghiani’s texts, but said he stopped
responding because the harassment, which continued for years, was so constant.
Voldan said that he finally decided to report the harassing texts to the police in
2017 because Sadaghiani had started making threats about his girlfriend and very
young son.
Voldan testified that exhibit No. 1 was a screenshot from his
cellphone of messages received on August 18, 2017, from phone number (440)
879-7971. Voldan said he recognized the number as one used previously by
Sadaghiani to send harassing texts. The texts stated, “Your life is getting ruined
you fat f***!”, “You are going to be murdered,” “Tick tock,” “Just waot[sic],”
“Laugh now,” “Cry later,” and “Fatty.” Voldan testified that he knew the messages
came from Sadaghiani because they contained the same words and phrases she
had used in other texts. He said she often called him a “fat f***,” used the phrase
“tick tock,” and that she often texted messages like “we know where you work, we
know this we know that.”
Voldan testified that exhibit No. 2 was a screenshot from his
cellphone of a picture and text messages received from phone number (440) 638-
1358 on September 1, 2017. Voldan said that he likewise recognized this number
as one that often appeared through the years in the harassing texts from
Sadaghiani. Voldan testified that the screenshot in exhibit No. 2 was a picture of a
male holding his genitalia and standing in the upstairs bathroom of the duplex
where he and James Jr. used to live. The picture was accompanied by texts stating,
“Burn in hell,” “We know where you work,” and “Monday morning your job will
find out what a drug addict junkie you are.” Voldan testified that the threat about
his workplace “came true” because someone sent an email to his employer stating
that he was rude and smelled like marijuana.
Upon questioning by the court, Voldan confirmed that although
Sadaghiani used various applications to block her cellphone number and make it
appear the texts were coming from other numbers, he recognized the language of
the texts and knew they were coming from her. On cross-examination, Voldan
confirmed that the harassing texts came from Sadaghiani:
Q. And what number did she use?
A. There’s so many phone numbers, sir, I couldn’t tell you.
Q. Well, you cannot, again the judge asked you the question, you
don’t know that she sent you these texts, do you?
A. Oh, I know it, sir.
Q. How do you know?
A. Because nobody harasses somebody for a decade.
Q. Okay. Did she use her name in this?
A. She doesn’t need to.
Q. Did she use a number you know is associated with her?
A. She’s smart, she uses these apps.
Q. So the answer is you’re guessing at this point?
A. No, sir, this is not a guess. This is her.
Q. You have no record that she used these phone numbers,
correct?
A. I know how she speaks. She’s done this to my other friends,
and these are the exact same phrases; whether it’s burn in hell or you
will be murdered or tick tock, they all come up to all of our cell
phones.
(Tr. 26-27.)
With respect to the making-a-false-alarm charge, Brecksville police
detective Christopher Grimm testified that in August 2017, he began investigating
false alarm calls made to the Brecksville Police Department. He said the
department had received calls on August 5, 6, 18, 20, and 27, 2017, all coming from
the same blocked number and what appeared to be the same female caller. All the
calls reported a disturbance at the same address on Tamarack Trail in the city of
Brecksville. Det. Grimm testified that on all five occasions, Brecksville police were
dispatched to the home on Tamarack Trail, and each time, they determined that
the call was unfounded.
The making-a-false-alarm charge in CRB-100302 related to the call
made on August 18, 2017, by the same woman, who reported that a man by the
name of James Zambataro was threatening her. The woman refused to give her
name or contact information, however, and immediately hung up. Det. Grimm
testified that the police were aware of the Zambataros’ address as a result of the
earlier false alarm calls. He said that the owners of the home, James and Janet
Zambataro, were in bed when the police arrived. They told the police they had no
idea why the police had responded to their home because they had not called and
there was nothing untoward occurring at the home.
After the dispatcher who took the August 20, 2017 call did a *57
trace on the call, Det. Grimm subpoenaed AT&T, asking for records relating to the
calls. Louis Williams, a senior investigator of asset protection at AT&T and
custodian of the records, testified that exhibit No. 3, AT&T records produced in
response to Det. Grimm’s subpoena, demonstrated that a call was made on
August 18, 2017, at 9:38 p.m. to the Brecksville police department, and that the
call, which lasted approximately 18 seconds, originated from number (305) 563-
1250.
Det. Grimm put the number into a law enforcement database and
learned that it belonged to Sadaghiani. He then subpoenaed Pinger, Inc.
(“Pinger”) for information related to the various numbers used in the texts to
Voldan. He testified that exhibit No. 4 was Pinger’s response to the subpoena and
showed the IP address for an account that included the number (440) 638-1358,
the number that appeared on the September 1, 2017 text to Voldan.
Det. Grimm testified that he then put the IP address from Pinger
into an open-source database, which identified Charter Communications, Inc.
(“Charter”) as the carrier. He testified that exhibit No. 5 was Charter’s response to
his subpoena, and showed that the IP address was for an account for customer
Shireen Sadaghiani, with the phone number (305) 563-1250 and a Florida address.
Det. Grimm testified that his conclusion, after reviewing the results
of his investigation, was that the texts to Voldan, as reflected on the screenshots of
his cellphone on exhibit Nos. 1 and 2, came from the account owned by Sadaghiani.
Det. Grimm testified further that the false alarm call made to the Brecksville Police
Department on August 18, 2017, came from the same account. He said that he
called the (305) 563-1250 number and spoke with Sadaghiani, who would neither
confirm nor deny that the number belonged to her.
On cross-examination, Det. Grimm testified that he did not know if
James Jr. ever lived at his parents’ home on Tamarack Trail. He acknowledged
that during one of the calls to the police department, the female caller stated that
James Jr. drove a black pickup truck, which the police subsequently learned was
true. Det. Grimm testified that he did not recall, however, whether the truck was
registered at the Tamarack Trail address. Det. Grimm testified that Sadaghiani
told him that she had a restraining order against James Jr. from another
jurisdiction, and that he was continuing to harass her in violation of the order.
Det. Grimm said that Sadaghiani never followed up with him about this allegation,
however. He testified further that James Jr. never appeared for an interview,
despite the detective’s request that he do so.
The trial court subsequently found Sadaghiani guilty of all offenses
as charged, and sentenced her to 180 days in jail, suspended; a $250 fine, and
inactive probation for one year. This appeal followed.
II. Law and Analysis
A. Ineffective Assistance of Counsel
In her first assignment of error, Sadaghiani contends that she was
denied effective assistance of counsel.
To establish ineffective assistance of counsel, a defendant must
demonstrate that counsel’s performance fell below an objective standard of
reasonable performance and that he or she was prejudiced by that deficient
performance, such that, but for counsel’s error, the result of the proceedings would
have been different. State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854
N.E.2d 1038, ¶ 205, citing Strickland v. Washington, 466 U.S. 668, 687-688, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984). In short, counsel’s errors must be so serious as
to render the result of the trial unreliable. In evaluating a claim of ineffective
assistance of counsel, a court must be mindful that there are countless ways for an
attorney to provide effective assistance in a given case, and it must give great
deference to counsel’s performance. Strickland at 689.
1. Speedy Trial
Sadaghiani first contends that she was denied effective assistance of
counsel because counsel did not move for dismissal on speedy trial grounds.
R.C. 2945.71(B)(2) requires the state to bring a first-degree
misdemeanor defendant to trial within 90 days after the person’s arrest or the
service of summons. That obviously did not happen here. It is apparent that
Sadaghiani waived any speedy trial violation, however. The record contains a
letter from Sadaghiani’s counsel dated February 18, 2020, to the Garfield Heights
Municipal Court that referenced the three cases in which Sadaghiani was charged.
In the letter, counsel entered a notice of appearance and Sadaghiani’s not guilty
plea to the charges, and stated, “Defendant waives all time limitations imposed
under the Ohio Rules of Criminal Procedure.”
Sadaghiani contends that the speedy trial requirements are found in
the Ohio Revised Code and, therefore, counsel’s reference to the Ohio Rules of
Criminal Procedure cannot be interpreted as a waiver. This argument is specious.
Sadaghiani cites no authority requiring that a speedy trial waiver must cite to the
Ohio Revised Code in order to be effective. It is apparent that Sadaghiani, through
counsel, intended to waive “all time limitations” regarding her case.
Furthermore, even assuming that counsel’s notice was not a waiver,
Sadaghiani fails to acknowledge that on March 27, 2020, Governor Mike DeWine
signed into law Am.Sub.H.B. No. 197, which immediately tolled, retroactive to
March 9, 2020, all statues of limitations, time limitations, and deadlines in the
Ohio Revised Code and the Ohio Administrative Code until the expiration of
Executive Order 2020-01D or July 30, 2020, whichever was sooner. In re Tolling
of Time Requirements Imposed by Rules Promulgated by Supreme Court & Use of
Technology, 158 Ohio St.3d 1447, 2020-Ohio-1166, 141 N.E.3d 974. Thus, the
speedy trial time for Sadaghiani ran from February 18, 2020, when counsel
entered a notice of appearance, until March 9, 2020, for a total of 19 days. It was
then tolled until July 30, 2020. It then ran from July 30, 2020, to August 18,
2020, the trial date, for another 19 days. Accordingly, the time elapsed was 38
days, not 184, as asserted by Sadaghiani. Trial counsel was therefore not
ineffective for not moving at trial for dismissal based upon a speedy trial violation.
2. Subpoenaed Records from Pinger, Inc. and Charter
Communications, Inc.
Sadaghiani next contends that counsel was ineffective for not
objecting to the admission of exhibit Nos. 4 and 5, subpoenaed records from
Pinger and Charter, respectively. She contends that the business records were
unauthenticated and that Det. Grimm was not qualified to testify to the
authenticity of the documents. Accordingly, she contends the records were
inadmissible hearsay and that defense counsel was ineffective for not objecting to
their admission.
Contrary to Sadaghiani’s argument, the record reflects that defense
counsel did indeed object to the admission of the exhibits, but the trial court
overruled the objections, finding that the records were admissible under Evid.R.
803(6), the business records exception to the hearsay rule. (Tr. 114-117.)
Furthermore, the record reflects that defense counsel objected to
Det. Grimm’s testimony about exhibit No. 1, AT&T’s subpoena response, and in
response to counsel’s objection, the trial court ordered AT&T’s custodian of
records to appear at trial and testify about exhibit No. 1. Defense counsel did not
object to Det. Grimm’s testimony about exhibit Nos. 4 and 5, however, although
counsel questioned the detective on cross-examination about the documents.
Counsel’s strategic decision to forego objection and then cross-examine the
detective does not amount to ineffective assistance of counsel. State v. Leonard,
104 Ohio St.3d 54, 2004-Ohio-235, 818 N.E.2d 229, ¶ 146 (even debatable trial
tactics and strategies do not generally constitute ineffective assistance of counsel).
Sadaghiani’s argument also fails because the records were
authenticated as business records and properly admitted under Evid.R. 803(6).
Evid.R. 901(A) governs the authentication of evidence. “The threshold for
admission is quite low, as the proponent need only submit ‘evidence sufficient to
support a finding that the matter in question is what its proponent claims.’” State
v. Williams, 8th Dist. Cuyahoga No. 106563, 2018-Ohio-4612, ¶ 26, quoting
Evid.R. 901(A). To qualify for admission under Evid.R. 803(6), a business record
must be one regularly recorded in a regularly conducted activity; a person with
knowledge of the act or event recorded must have made the record; the record
must have been recorded at or near the time of the act or event; and a foundation
for the record must be laid by the custodian of the record or by some other
qualified witness. State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d
31, ¶ 171.
Both exhibit Nos. 4 and 5 contained certifications from the
custodian of records at the respective companies that produced the records. With
respect to exhibit No. 4, the records produced by Pinger, Heather Manfre, a legal
compliance manager at Pinger, provided a signed certification in which she
declared, under the penalty of perjury, that she was the custodian of records with
personal knowledge of Pinger’s business filing record system, and that the records
prepared in response to the subpoena were true and accurate copies of records
made at or near the time of the occurrence of the event by a person with knowledge
of the event, and in the course of Pinger’s regularly conducted business activity.
Likewise, regarding exhibit No. 5, Moudine Armstrong, a senior
paralegal at Charter, provided a signed declaration in which she declared, under
penalty of perjury and as custodian of the records, that she was familiar with
Charter’s billing and customer records, and that the records submitted in response
to Det. Grimm’s subpoena were prepared in Charter’s ordinary course of business
and contemporaneously with the recorded activity.
We agree with Sadaghiani that Det. Grimm could not authenticate
the records because he was neither the records custodian nor “some other qualified
witness” with knowledge of the record-keeping systems at either company. Evid.
R. 803(6). Manfre and Armstrong’s certifications, however, were sufficient to
authenticate the phone records provided by Pinger and Charter.
This case is similar to Chagrin Falls v. Ptak, 8th Dist. Cuyahoga No.
109342, 2020-Ohio-5623, in which the defendant argued that the trial court had
improperly admitted his cell phone records without sufficient authentication. This
court rejected the argument because a detective testified at trial that he had
obtained the defendant’s cell phone records through a court-ordered subpoena to
AT&T, and that the records were accompanied by a certification of authenticity
from an AT&T records custodian. Id. at ¶ 21. This court found that it was
therefore unnecessary for the city to elicit additional testimony from a records
custodian, and that the cellphone records were properly admitted. Id.
As in Ptak, we find that because the records from Pinger and Charter
Communications were accompanied by declarations from the respective
custodians of records that the records were authentic and responsive to the
subpoena requests, it was not necessary for the city to produce a records custodian
at trial to elicit testimony about the records’ authenticity. The records were
properly authenticated and admitted under Evid.R. 803(6). Accordingly, defense
counsel was not ineffective for not objecting to their admission.
3. Det. Grimm’s Hearsay Testimony About the False Alarm Calls
Sadaghiani next contends that because Det. Grimm never heard the
calls to the Brecksville Police Department, counsel was ineffective for not objecting
to his hearsay testimony about the substance of the calls. Sadaghiani’s argument
has no merit.
Det. Grimm testified to the substance of the false alarm call made
on August 18, 2017, in response to questioning by the trial judge. He read for the
judge the summary written by the dispatcher who took the call at 9:53 p.m.:
“Female caller stated Jim Zambataro is threatening her and it is not stopping. He
threatened her life. Would not give a name and hung up.” (Tr. 105.) We do not
find counsel’s failure to object to Det. Grimm’s response to direct questioning by
the judge to be ineffective.
Moreover, it appears that counsel’s failure to object to Det. Grimm’s
testimony on direct examination that the calls involved a “domestic situation” was
a strategic decision. On cross-examination, counsel questioned Det. Grimm about
the dispatcher’s notes regarding the August 18, 2017 call and confirmed with the
detective that the report contained no mention of a “domestic situation,” but
instead indicated that the caller was complaining about being threatened by
“James Zambataro.” (Tr. 85-86.) Counsel then questioned Det. Grimm about
whether James Jr. lived at the Tamarack Trail address; whether the detective was
aware that in one of the calls, the caller had described James Jr. as driving a black
pickup truck; and whether James Jr.’s pickup truck was registered at that address.
Counsel also questioned the detective about the restraining order Sadaghiani had
obtained against James Jr. Counsel then asked Det. Grimm, “If in fact Jim
Zambataro was threatening her, threatened her life and was not stopping, the
allegations she made in the call — and by making that call she was reporting a
truthful statement, correct?” (Tr. 89-90.)
Not objecting to Det. Grimm’s testimony on direct examination
allowed counsel to question him on cross-examination about the substance of the
calls in order to prove the defense theory — that Sadaghiani’s calls to the
Brecksville Police Department were not false alarms because James Jr. was
actually threatening her. Counsel’s decision to not object to Det. Grimm’s
testimony on direct examination was a trial strategy that was within his discretion.
As stated earlier, trial tactics and strategies do not constitute a denial of effective
assistance of counsel. State v. Gooden, 8th Dist. Cuyahoga No. 88174, 2007-Ohio-
2371, ¶ 38, citing State v. Clayton, 62 Ohio St.2d 45, 402 N.E.2d 1189 (1980).
The first assignment of error is overruled.
III. Venue
In her second assignment of error, Sadaghiani contends that her
convictions for telephone harassment and aggravated menacing against Voldan
should be reversed because the city failed to prove venue.
Venue refers to the “‘appropriate place of trial for a criminal
prosecution as between different geographical subdivisions within a state.’” State
v. Lenard, 8th Dist. Cuyahoga No. 108646, 2020-Ohio-1502, ¶ 32, quoting State v.
Morrar, 12th Dist. Madison No. CA2013-08-027, 2014-Ohio-3663, ¶ 9. The right
to proper venue is codified in R.C. 2901.12(A), which provides that the “trial of a
criminal case in this state shall be held in a court having jurisdiction of the subject
matter, and in the territory of which the offense or any element of the offense was
committed.” As relevant to this case, R.C. 2901.12(I)(1) further provides that
[w]hen 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 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.
Although it is not a material element of the offense charged, venue is
a fact that must be proved in criminal prosecutions unless waived by the
defendant. State v. Headley, 6 Ohio St.3d 475, 477, 453 N.E.2d 716 (1983). The
standard of proof is beyond a reasonable doubt, although venue need not be
proved in express terms so long as it is established by all the facts and
circumstances of the case. Id.The city established venue when Det. Grimm responded
affirmatively to the following question by the prosecutor: “Sir, these
communications, did they occur in the city of Brecksville, the county of Cuyahoga,
and the State of Ohio?” (Tr. 84.) The record reflects that the question referred to
both the harassing texts sent to Voldan and the false alarm calls to the Brecksville
Police Department, thus establishing venue for all the offenses with which
Sadaghiani was charged.
The second assignment of error is therefore overruled.
IV. Sufficiency of the Evidence
In her third assignment of error, Sadaghiani contends that there was
insufficient evidence to support her convictions.
The test for sufficiency requires a determination of whether the
prosecution met its burden of production at trial. State v. Bowden, 8th Dist.
Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12. 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. State v. Murphy, 91 Ohio St.3d 516, 543, 2001-Ohio-112, 747
N.E.2d 765 (2001). “‘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.’” State v.
Walker, 150 Ohio St.3d 409, 2016-Ohio-829, 82 N.E.3d 1124, ¶ 12, quoting State v.
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
A. Making A False Alarm
Sadaghiani was convicted of making a false alarm in violation of
Brecksville Codified Ordinances 509.07(a)(3), which states that “[n]o person shall
[r]eport to any law enforcement agency an alleged offense or other incident within
its concern, knowing that the offense did not occur.”
Sadaghiani argues that the city did not present sufficient evidence to
support her conviction of this offense because it did not present a witness who
actually heard the phone call on August 18, 2017. She contends that although Det.
Grimm testified that the call “involved a domestic situation,” he had no actual
knowledge of what was said on the call and, therefore, the city failed to present
substantive evidence regarding the elements of the offense.
She further contends that even if the city presented substantive
evidence of the call through the dispatch notes, the city did not present evidence
regarding any “alleged offense or other incident” about which the caller made a
false statement. She also contends that the city did not present evidence that she
knowingly called in false information. Sadaghiani’s arguments are without merit.
The city presented evidence, through Det. Grimm’s testimony, that
the Brecksville Police Department received five separate telephone calls
concerning a home on Tamarack Trail in the city of Brecksville. Each time, the
caller refused to give her name and the number from which the calls were made
was blocked. And each time the police were dispatched to the home, they
determined there was no disturbance at the home and the call was unfounded.
Det. Grimm offered evidence about the false nature of the August 18,
2017 call through exhibit No. 6, the dispatcher’s Radio Log Report about the call,
which stated: “Female caller stated Jim Zambataro is threatening her and it is not
stopping, he threatened her life. Would not give a name and hung up.” (Tr. 111-
112.) Det. Grimm testified that the dispatcher’s handwritten note on the report
stated, “At least 3 phone calls from this female in last 2-2-1/2 weeks.”
Det. Grimm testified that as with the other unfounded calls to the
Brecksville Police Department, when the police arrived at the Zambataros’ home
on Tamarack Trail after the August 18, 2017 call, they learned the call was
unfounded. The residents of the home were in bed when the police arrived, and
upon being awakened, told the police they had not called and there was no
disturbance that required police intervention.
Det. Grimm testified that he learned from AT&T’s response to his
subpoena that the August 18, 2017 call was made from phone number (305) 563-
1250. Likewise, Louis Williams, a senior investigator at AT&T, testified that the
call made to the Brecksville Police Department on August 18, 2017, at 9:38 p.m.
lasted only about 18 seconds and originated from phone number (305) 563-1250.
Det. Grimm testified that he put the number into a law enforcement data base and
learned it belonged to Sadaghiani. He testified that he then subpoenaed records
from Pinger and Charter, and after reviewing the information contained in these
records, concluded that the call to the Brecksville Police Department on August 18,
2017, was made by Sadaghiani.
Construing this evidence in a light most favorable to the
prosecution, we find that the city produced sufficient evidence to prove each
element of the making a false alarm offense. The city produced evidence that the
August 18, 2017 call was made by Sadaghiani, the “alleged offense or other
incident” was a threat from James Zambataro, and the alleged offense or incident
did not occur. Further, in light of the city’s evidence that the police department
had received three calls prior to the August 18, 2017 call, all from the same woman
who each time refused to give her name, and all of which proved to be unfounded,
the city produced sufficient evidence that Sadaghiani knowingly made a false
alarm call on August 18, 2017.
B. Telecommunications Harassment and Aggravated Menacing
Sadaghiani was convicted of telecommunications harassment in
violation of Brecksville Codified Ordinances 537.109(a)(6), which states that
[n]o person shall knowingly make or cause to be made a
telecommunication, or knowingly permit a telecommunication to be
made from a telecommunications device under the person’s control,
to another, if the caller knowingly makes any comment, request,
suggestion, or proposal to the recipient of the telecommunication that
is threatening, intimidating, menacing, coercive, or obscene with the
intent to abuse, threaten, or harass the recipient[.]
She was also convicted of aggravated menacing in violation of
Brecksville Codified Ordinances 537.05(a), which provides that “[n]o person shall
knowingly cause another to believe that the offender will cause serious physical
harm to the person or property of the other person, the other person’s unborn or a
member of the other person’s immediate family.” Both offenses were directed
against Voldan.
Sadaghiani contends the city did not produce sufficient evidence to
support the aggravated menacing conviction because there was no evidence that
Voldan believed she would cause him serious physical harm. We disagree.
Voldan testified that he was “alarmed” after he received texts from
Sadaghiani telling him, “You are going to be murdered. Tick tock. [Your] life will
be ruined.” (Tr. 12.) He said that although he had received other harassing texts
from Sadaghiani through the years, these texts caused particular “fear and
anxiety.” (Tr. 13.) Voldan’s testimony that he was fearful and anxious after
receiving texts that threatened to kill him is sufficient to demonstrate that he
believed Sadaghiani would cause him serious physical harm.
Sadaghiani next contends that the evidence was insufficient to
support both the aggravated menacing and telecommunication harassment
convictions because the city did not present sufficient evidence that she was the
individual who sent the texts. Again, we disagree.
Voldan testified consistently on direct examination, cross-
examination, and in response to questioning from the judge that he knew the texts
came from Sadaghiani because the harassment had been ongoing for years, and he
recognized the words and phrases that she used in the texts. In addition to
Voldan’s testimony, Det. Grimm testified about his investigation; the responses
from AT&T, Pinger, and Charter to his subpoena requests; and his conclusion in
light of the results of his investigation that Sadaghiani both sent the threatening
texts to Voldan and made the false alarm calls to the Brecksville Police
Department. Construed in a light most favorable to the prosecution, this evidence
is sufficient to convince a reasonable factfinder that Sadaghiani sent the texts to
Voldan.
Sadaghiani contends this evidence was insufficient to establish her
identity, however, because Voldan’s testimony established only that he “suspected”
that she was sending the texts. She also contends that Det. Grimm’s testimony that
the same individual sent the texts and made the false alarm calls is not credible
because the documents from Pinger indicated that the Pinger account was created
on September 2, 2017, after the harassing texts were sent to Voldan.
Sadaghiani’s arguments are misplaced. “‘In a sufficiency analysis,
we do not consider the credibility of witnesses or whether the evidence is to be
believed, but whether, if believed, the evidence against a defendant would support
a conviction.’” State v. Philpott, 8th Dist. Cuyahoga Nos. 109173, 109174, and
109175, 2020-Ohio-5267, ¶ 60, quoting State v. Chambers, 10th Dist. Franklin No.
13AP-1093, 2014-Ohio-4648, ¶ 17. Voldan and Det. Grimm’s testimony, if
believed, is sufficient to establish that Sadaghiani sent the threatening texts. And
even without Det. Grimm’s testimony, Voldan’s testimony alone, if believed, is
sufficient to establish that Sadaghiani sent the texts.
The third assignment of error is overruled.
V. Manifest Weight of the Evidence
In her fourth assignment of error, Sadaghiani contends that her
convictions are against the manifest weight of the evidence.
In contrast to a sufficiency argument, a manifest weight challenge
questions whether the state met its burden of persuasion. State v. Lenard, 8th
Dist. Cuyahoga No. 105998, 2018-Ohio-3365, ¶ 51, citing Bowden, 8th Dist.
Cuyahoga No. 92266, 2009-Ohio-3598, at ¶ 12. A reviewing court “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
reversed and a new trial ordered.” State v. Thompkins, 78 Ohio St.3d 380, 388,
678 N.E.2d 541 (1997).
Sadaghiani contends that her convictions were against the manifest
weight of the evidence because even if the evidence established that she made the
calls to the Brecksville Police Department, the calls were not false because there
was a “reasonable probability” that James Jr. was harassing her. She points to the
restraining order against him, as well as his failure to respond to Det. Grimm’s
request for an interview, as evidence that the allegations she made in the calls were
truthful. She also contends that Voldan is a friend of James Jr.’s and, therefore,
his testimony was biased. She contends that the trial court ignored the evidence
that contravened her guilt, including Voldan’s bias, and convicted her on a weak
evidentiary record.
We find that Sadaghiani’s convictions are not against the manifest
weight of the evidence. The evidence established that she made the calls to the
Brecksville Police Department, and that all of the calls were unfounded. The
evidence also established that the number from which the calls were made was
blocked. As the trial judge, as the finder of fact, recognized when she found
Sadaghiani guilty of making the false alarm call on August 18, 2017, an individual
who truly feels threatened would not block their telephone number from the police
nor hang up without giving the police the necessary information to help them. (Tr.
129.)
With respect to Voldan’s testimony, we are mindful that
determinations regarding the credibility of witnesses and the weight of the
evidence rest primarily with the trier of fact because the trier of fact is in the best
position to view the witnesses and observe their demeanor, gestures, and voice
inflections — observations that are critical to determining a witness’s credibility.
State v. Wilkinson, 8th Dist. Cuyahoga No. 100859, 2014-Ohio-5791, ¶ 39. The
trier of fact may take note of any inconsistencies in the testimony and resolve them
accordingly; it is free to accept or reject any or all of the testimony of any witness.
Id., citing State v. Smith, 8th Dist. Cuyahoga No. 93593, 2010-Ohio-4006, ¶ 16.
The trial judge listened to Voldan’s testimony and apparently
concluded that his testimony was credible, despite his friendship with James Jr.
We find nothing in the record that suggests a different conclusion.
A conviction should be reversed as against the manifest weight of
the evidence only in the most “exceptional case in which the evidence weighs
heavily against the conviction.” Thompkins, 78 Ohio St.3d 380 at 388, 678 N.E.2d
541. This is not that exceptional case. The fourth assignment of error is therefore
overruled.
VI. Other Acts Evidence
In her fifth assignment of error, Sadaghiani contends that the trial
court erred by admitting evidence of her other bad acts in violation of Evid.R.
404(B). Specifically, she objects to Voldan’s testimony that he had been receiving
harassing and threatening text messages from Sadaghiani “over the course of
years” prior to the 2017 texts.
This court reviews a trial court’s decision regarding the admission of
evidence for an abuse of discretion. State v. Sheline, 8th Dist. Cuyahoga No.
106649, 2019-Ohio-528, ¶ 32, citing State v. Conway, 100 Ohio St.3d 412, 2006-
Ohio-2815, 848 N.E.2d 810, ¶ 62. Accordingly, our inquiry is limited to whether
the trial court’s evidentiary rulings were unreasonable, arbitrary, or
unconscionable. Sheline at id., citing State v. Barnes, 94 Ohio St.3d 21, 23, 759
N.E.2d 1240 (2002).
“Evidence that an accused committed a crime other than the one for
which he is on trial is not admissible when its sole purpose is to show the accused’s
propensity or inclination to commit crime or that he acted in conformity with bad
character.” State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d
12778, ¶ 15. Nevertheless, “evidence of other crimes, wrongs, or acts of an accused
tending to show the plan with which an act is done may be admissible for other
purposes, such as those listed in Evid. R. 404(B), to show proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or the absence of
mistake or accident.” Id. at ¶ 19. “Hence, the rule affords broad discretion to the
trial judge regarding the admission of other acts evidence.” Id. at ¶ 17.
In deciding whether to admit other acts evidence, trial courts should
conduct a three-step analysis:
The first step is to consider whether the other acts evidence is relevant
to making any fact that is of consequence to the determination of the
action more or less probable than it would be without the evidence.
Evid.R. 401. The next step is to consider whether evidence of the
other crimes, wrongs, or acts is presented to prove the character of the
accused in order to show activity in conformity therewith or whether
the other acts evidence is presented for a legitimate purpose, such as
those stated in Evid.R. 404(B). The third step is to consider whether
the probative value of the other acts evidence is substantially
outweighed by the danger of unfair prejudice. See Evid. R. 403.
Id. at ¶ 20.
Voldan testified that he knew the August 18, 2017 and September 1,
2017 text messages were from Sadaghiani because he recognized the phone
numbers on the texts as numbers Sadaghiani had previously used to send
harassing texts, and he recognized the words and phrases in the texts. Considering
the first step of the three-step analysis, we find that Voldan’s testimony was
relevant because it tended to show the identity of person who sent the texts.
Regarding the second step — whether the evidence was presented to
prove the accused’s character in order to show the conduct was in conformity with
that character — the city did not offer Voldan’s testimony to show that sending
harassing texts was in conformity with Sadaghiani’s character. Rather, Voldan’s
testimony was offered to prove Sadaghiani’s identity as the sender of the texts.
Finally, the probative value of Voldan’s testimony was not
outweighed by the danger of unfair prejudice. This was a trial to the bench, and as
such, we presume the trial judge followed the rules of evidence and rendered a
decision on the proper evidence. State v. Atwater, 8th Dist. Cuyahoga No. 107182,
2020-Ohio-484, ¶ 15. Sadaghiani has not pointed to anything that would lead us
to conclude the trial court improperly considered Voldan’s testimony for any
purpose other than establishing the identity of the sender of the August 18 and
September 1, 2017 text messages.
Indeed, Sadaghiani concedes that the trial court admitted Voldan’s
testimony to establish identity, but asserts that the admission of the evidence was
prejudicial error because the city never gave notice that it intended to use other
acts testimony, in violation of Evid.R. 404(B). Sadaghiani contends that defense
counsel “was left flatfooted and unable to defend” against Voldan’s testimony that
he believed he had received harassing texts from Sadaghiani “over the course of
years.”
“In criminal cases, the proponent of evidence to be offered under
[Evid.R. 404(B)] shall provide reasonable notice in advance of trial, or during trial
if the court excuses pretrial notice on good cause shown of the general nature of
any such evidence it intends to introduce at trial.” Evid.R. 404(B). Nevertheless,
as indicated in the Staff Notes to the rule, the notice requirement “should not be
construed to exclude otherwise relevant and admissible evidence solely because of
a lack of notice, absent a showing of bad faith.” State v. Plevyak, 11th Dist.
Trumbull No. 2013-T-oo51, 2014-Ohio-2889, ¶ 21.
The city concedes that it did not give formal notice of its intent to
use other acts evidence at trial but contends there was no bad faith in its failure to
give notice. We agree. Under the city’s open discovery policy, all of the city’s
evidence is provided to a defendant to review in preparation for trial. Indeed, as
defense counsel acknowledged at trial, he received over 5,000 pages of discovery
from the city. (Tr. 93.) Sadaghiani thus had access to the police reports, including
a report taken by the Brecksville Police Department on February 15, 2018, from
Voldan. In the report, the police officer noted that Voldan “stated the harassment
and threats have been happening since late 2011” and “he has been mostly ignoring
the calls and texts for the last years.” In light of this information, Sadaghiani could
not have been surprised that Voldan testified at trial that the harassing texts had
been occurring for years. Accordingly, we cannot conclude that the city’s failure to
give notice is reversible error. Cleveland v. Lowery, 8th Dist. Cuyahoga No.
103722, 2016-Ohio-5626, ¶ 30 (city’s failure to give prior notice of its potential use
of Evid.R. 404(B) evidence not reversible error where the witness’s name and
testimony to which the defendant objected were disclosed to the defendant in the
police report that was provided to the defendant prior to trial).
The fifth assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending is terminated. Case remanded
to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
MARY J. BOYLE, A.J., and
EILEEN A. GALLAGHER, J., CONCUR