Cleveland v. White ( 2024 )

[Cite as Cleveland v. White, 2024-Ohio-1584.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
CITY OF CLEVELAND, :
Plaintiff-Appellee, :
No. 112720
v. :
ANGELA C. WHITE, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 25, 2024
Criminal Appeal from the Cleveland Municipal Court
Case No. 2002-CRB-007841
Appearances:
Mark Griffin, Cleveland Director of Law, and Aqueelah A.
Jordan, Chief Prosecuting Attorney, and Kevin Burns,
Assistant Prosecuting Attorney, for appellee.
James A. Jenkins, appellant.
FRANK DANIEL CELEBREZZE, III, J.:
Appellant Angela C. White (“appellant”) brings this appeal challenging
her conviction for telecommunications harassment by the Cleveland Municipal
Court. After a thorough review of the applicable law and facts, we affirm the
judgment of the trial court.
I. Factual and Procedural History
This matter arises from unwanted text messages and emails sent from
appellant to the victim in this matter, Andrea Sitler (“Sitler”). At the time in
question, appellant was dating Joe Naples (“Naples”), with whom Sitler had
previously dated and had a child.
In November 2021, Sitler made a report with the Cleveland Police
Department, alleging that she had received over 50 unwanted text messages and 18
emails from appellant since September 12, 2020.
Sitler detailed the contact from appellant dating back to September 12,
2020. The first message was a video of appellant scrolling through Naples’s phone
while speaking. Sitler did not respond to this message or the several others she
received on September 15, 2020.
On September 23, 2020, Sitler received a photo sent to her phone by
appellant. She responded to this message and asked appellant not to contact her.
Appellant replied to the message, and Sitler responded, asking appellant again not
to contact her and mentioned the Ohio law precluding telephone harassment. There
were no further replies from appellant.
In December 2020, Sitler received two messages to which she did not
reply. In September 2021, she received additional text messages from appellant,
and again in November 2021.
Appellant was charged with two counts of committing telephone
harassment, in violation of Cleveland Codified Ordinances (“CCO”) 621.10(a)(5) and
(b), respectively. The case was tried to a jury, which found appellant guilty of
violating subsection (a)(5) but was unable to come to a verdict on the charge relating
to subsection (b). The state subsequently nolled the second charge. Appellant was
sentenced to 30 days in jail, with 30 days suspended, one year of community control,
and 20 hours of community work service.
Appellant then filed the instant appeal, raising six assignments of error
for our review:
1. The evidence was insufficient to sustain the conviction for making a
telecommunication after being told not to contact the recipient.
2. The trial court plainly erred when it instructed the jury that the date
of the offense was “September 14, 2022,” and not “September 15,
2020.”
3. The trial court erred when it admitted, over objection, testimony
from the victim that on September 23, 2020, she told the sender of
telecommunications not to contact her further.
4. The conviction was against the manifest weight of the evidence.
5. The trial court plainly erred when it treated the criminal complaint
as charging two offenses in a single statement that was not divided into
two separate counts.
6. Appellant received the ineffective assistance of counsel.
II. Law and Analysis
A. Sufficiency of the Evidence
In her first assignment of error, appellant argues that her convictions
were not supported by sufficient evidence. Specifically, appellant argues that the
state offered no evidence as to who sent the telecommunications to her, and no
evidence as to the telephone number of the device that sent the messages. In
addition, appellant asserts that there was no evidence that the victim told appellant
not to contact her prior to the September 2020 messages.
When an appellate court reviews a record upon a sufficiency
challenge, “‘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. Leonard, 104
Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v. Jenks, 61
Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
Appellant was convicted of telecommunications harassment, in
violation of CCO 621.10(a)(5), which provides 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 * * * [k]nowingly makes the telecommunication to
the recipient of the telecommunication, to another person at the
premises to which the telecommunication is made, or to those
premises, and the recipient or another person at those premises
previously has told the caller not to make a telecommunication to those
premises or to any persons at those premises.
During her testimony, Sitler identified appellant as the person who
was texting her after she had told her to stop. She testified that texts and emails
were sent to her by appellant from September 2020 to August 2022, and that
appellant had been told to stop multiple times. Sitler read into the record the
message that she sent to appellant instructing appellant not to contact her.
Through appellant’s testimony, the state offered sufficient evidence
that the victim had asked appellant to stop contacting her. After viewing the
evidence in a light most favorable to the state, we conclude that a rational trier of
fact could have found beyond a reasonable doubt that appellant engaged in
telecommunications harassment in violation of CCO 621.10(a)(5). Appellant’s first
assignment of error is overruled.
B. Jury Instruction – Date of Offense
In her second assignment of error, appellant argues that while
charging the jury, the court incorrectly stated that the date of the offense was
September 14, 2022, rather than on or about September 15, 2020.
The criminal complaint was made on September 14, 2022, and alleged
that appellant had engaged in telecommunications harassment on or about
September 15, 2020. The probable cause statement provided that the
telecommunications had occurred repeatedly and were as recent as August 29,
2022. During the trial, the jury was presented evidence of telecommunications that
had occurred between September 2020 and August 2022.
The court stated the following during jury instructions with regard to
the first count:
Before you can find the Defendant guilty, you must find on or — you
must find beyond a reasonable doubt that on or about the 14th day of
September 2022 in the city of Cleveland, Cuyahoga County, Ohio the
Defendant knowingly made or caused to be made the
telecommunication to Andrea Sitler and the caller had previously been
told by Andrea Sitler not to make communications to Andrea Sitler at
the premises.
It appears that when reading the charges to the jury, the court stated
the date that the complaint was signed rather than the date that the complaint
alleged the offense to have occurred. Appellant did not object to the date stated in
the jury instructions, and thus we can only review for plain error. Even in the
context of jury instructions, “[p]lain error ‘should be applied with utmost caution
and should be invoked only to prevent a clear miscarriage of justice.’” State v.
Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215, ¶ 52, quoting State
v. Underwood, 3 Ohio St.3d 12, 444 N.E.2d 1332 (1983), syllabus. Plain error as to
jury instructions is proven when the outcome of the trial would have been different
but for the alleged error. State v. Campbell, 69 Ohio St.3d 38, 630 N.E.2d 339(1994).
The jury heard the dates of the telecommunications in question stated
throughout the trial. Moreover, we do not know whether the written jury
instructions that the jury received for deliberations included the date of
September 14, 2022, or the date alleged in the complaint because the jury
instructions were not made part of the trial court record.
The date stated in the charge to the jury was clearly a mistake by the
court, and we do not find that appellant can demonstrate prejudice from a single
misstatement of the date of the offense in this case. We find that the trial court did
not plainly err, and appellant’s second assignment of error is overruled.
C. Admission of Testimony
In her third assignment of error, appellant argues that the trial court
abused its discretion when it allowed Sitler to testify about the text message that she
sent on September 23, 2020, where she told appellant not to contact her again and
referenced the Ohio statute regarding telecommunications harassment. Appellant
argues that admitting the testimony was error because the text messages were
“writings” under Evid.R. 1002 and should have been proven by producing the
writing itself.
Evid.R. 1002 requires that “[t]o prove the content of a writing,
recording, or photograph, the original writing, recording, or photograph is required,
except as otherwise provided in these rules or by statute enacted by the General
Assembly not in conflict with a rule of the Supreme Court of Ohio.”
Assuming that the original text messages were available but not
placed into evidence, the admission of Sitler’s testimony regarding their contents
violated Evid.R. 1002. However, any error in the admission of her testimony was
harmless. The outcome of the trial would not have been different because there was
additional evidence admitted — the victim’s testimony that she told appellant to stop
contacting her and the emails submitted into evidence — that would still support
appellant’s conviction. Thus, appellant’s third assignment of error is overruled.
D. Manifest Weight of the Evidence
In her fourth assignment of error, appellant argues that her
convictions were against the manifest weight of the evidence. Specifically, she
contends that her conviction was based upon “paltry evidence, a critical
misstatement by the trial court[,] and a significant evidentiary error in admitting
improper testimony regarding the content of a text message.”
When reviewing a manifest weight challenge, an appellate 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. Virostek, 8th Dist.
Cuyahoga No. 110592, 2022-Ohio-1397, ¶ 54, quoting State v. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). A reversal on the basis that a verdict
is against the manifest weight of the evidence is granted “‘only in the exceptional
case in which the evidence weighs heavily against the conviction.’” State v.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting Martin at 175.
As this court has previously stated:
The criminal manifest weight of-the-evidence standard addresses the
evidence’s effect of inducing belief. State v. Wilson, 113 Ohio St.3d 382,
2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing Thompkins, 78 Ohio
St.3d at 386, 678 N.E.2d 541 (1997). Under the manifest weight-of-the-
evidence standard, a reviewing court must ask the following question:
whose evidence is more persuasive — the state’s or the defendant’s?
Wilson at id. Although there may be legally sufficient evidence to
support a judgment, it may nevertheless be against the manifest weight
of the evidence. Thompkins at 387; State v. Johnson, 88 Ohio St.3d 95,
2000-Ohio-276, 723 N.E.2d 1054 (2000).
When a court of appeals reverses a judgment of a trial court on the basis
that the verdict is against the manifest weight of the evidence, the
appellate court sits as a “thirteenth juror” and disagrees with the fact
finder’s resolution of the conflicting testimony. Wilson at id., quoting
Thompkins at id.State v. Williams, 8th Dist. Cuyahoga No. 108275, 2020-Ohio-269, ¶ 86-87.
In its role as the “thirteenth juror,” an appellate court must review the
entire record, weigh the direct and circumstantial evidence and all reasonable
inferences drawn therefrom, and consider the credibility of the witnesses to
determine “‘whether in resolving conflicts in the evidence, the [trier of fact] clearly
lost its way and created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered.’” Thompkins at 387, quoting Martin.
In the instant matter, Sitler testified as to the timeline of messages
from and to appellant, including ones where Sitler told appellant to stop contacting
her. Two emails from appellant, dated August 19 and August 29, 2022, were
admitted into evidence, one of which was signed by appellant.
We cannot find that this is the exceptional case where the trier of fact
clearly lost its way and created such a manifest miscarriage of justice that appellant’s
conviction must be reversed. Appellant’s fourth assignment of error is overruled.
E. Criminal Complaint
In her fifth assignment of error, appellant argues the trial court plainly
erred when it treated the criminal complaint as charging two offenses in a single
statement rather than being divided into separate counts. Appellant contends that
the single complaint utilized the language of two separate telecommunications
offenses, to wit: (1) sending communications after being told not to do so; and (2)
sending harassing communications. She contends that because the case was tried
as a two-count case, the jury was able to “split the baby” and heard testimony
regarding the victim’s emotional suffering that it would not have heard if the case
had been a one-count case. She asserts this must have provoked sympathy by the
jury.
Crim.R. 12(C)(2) provides that “[d]efenses and objections based on
defects in the indictment, information, or complaint” must be raised before trial.
The failure to raise these issues before trial results in a waiver of these defenses or
objections. Crim.R. 12(H).
Similarly, R.C. 2941.29 provides:
No indictment or information shall be quashed, set aside, or dismissed,
* * * nor shall any conviction be set aside or reversed on account of any
defect in form or substance of the indictment or information, unless the
objection to such indictment or information, specifically stating the
defect claimed, is made prior to the commencement of the trial, or at
such time thereafter as the court permits.
Therefore, the failure to raise any objections based on defects in the
indictment prior to trial results in a waiver of these defenses or objections. See State
v. Horner, 126 Ohio St.3d 466, 2010-Ohio-3830, 935 N.E.2d 26, ¶ 46, citing Crim.R.
12(C)(2); State v. Mitchell, 8th Dist. Cuyahoga No. 88977, 2007-Ohio-6190, ¶ 44-
45.
There are certain exceptions, however, to this waiver. Crim.R. 12
provides for two such exceptions: (1) the indictment fails to show jurisdiction in the
court, and (2) the indictment fails to charge an offense. Crim.R. 12(C)(2). These
objections “shall be noticed by the court at any time during the pendency of the
proceeding.” See Crim.R. 12. In this case, neither exception applies because there
were no issues with the trial court's jurisdiction or with the offenses charged within
the indictment.
Because appellant did not move to dismiss the indictment and instead
chose to go to trial on the charges, she has waived all but plain error. “An error does
not constitute plain error unless, but for the error, the outcome of the trial clearly
would have been otherwise.” State v. Hill, 8th Dist. Cuyahoga No. 95379, 2011-
Ohio-2523, ¶ 9.
In the instant matter, appellant is correct that the criminal complaint
does not clearly set forth two separate counts. The complaint simply states both
subsections that it alleged appellant had violated. However, at trial, the criminal
complaint was always treated as though it had stated two separate counts. The trial
court instructed the jury on two separate counts. The jury was specifically instructed
to consider each count separately and arrive at two separate verdicts.
Appellant appears to be making a joinder argument, arguing that
hearing the testimony regarding the second count impacted the jury’s thinking when
deciding the first count. However, appellant’s brief did not present any argument
or authority in support of a joinder argument, and we decline to craft an argument
for her.
The jury returned a guilty verdict on the first count but was unable to
reach a verdict on the second, which was subsequently nolled by the state. Thus,
appellant was found guilty of one count, and as discussed above, this conviction was
supported by competent credible evidence. Appellant has not demonstrated how
she was prejudiced by the wording of the complaint, and her fifth assignment of
error is overruled.
F. Ineffective Assistance of Counsel
In her sixth assignment of error, appellant argues that her counsel was
ineffective by failing to object to the court’s misstatement of the date of the offense
and by failing to challenge the complaint charging appellant with two offenses in a
single count.
In order to establish ineffective assistance of counsel, a defendant
must demonstrate that (1) counsel’s performance was deficient and fell below an
objective standard of reasonableness and (2) that, but for counsel’s unprofessional
errors, there is a reasonable probability that the result of the trial would have been
different. State v. Jenkins, 2018-Ohio-483, 106 N.E.3d 216, ¶ 28 (8th Dist.), citing
Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984). The defendant must satisfy both prongs of the test in order to prove
ineffective assistance of counsel. State v. Harris, 8th Dist. Cuyahoga No. 109083,
2020-Ohio-4138, ¶ 28, citing Strickland at 687.
Under Ohio law, “every properly licensed attorney is presumed to be
competent.” State v. Knight, 8th Dist. Cuyahoga No. 109302, 2021-Ohio-3674, ¶ 47,
citing State v. Black, 2019-Ohio-4977, 149 N.E.3d 1132, ¶ 35 (8th Dist.), citing State
v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985). Therefore, when
“evaluating counsel’s performance on a claim of ineffective assistance counsel, the
court must give great deference to counsel’s performance and ‘indulge a strong
presumption’ that counsel’s performance ‘falls within the wide range of reasonable
professional assistance.’” Id., quoting Strickland at 689.
With regard to appellant’s failure to object to the trial court’s
misstatement of the date of the offense, we have already determined that this did
not constitute error. In addition, we also determined that appellant has not shown
any error in the criminal complaint. Appellant has not demonstrated that her
counsel was ineffective or that she was prejudiced by counsel’s failure to object.
Appellant’s sixth assignment of error is overruled.
III. Conclusion
All of appellant’s assignments of error are overruled. The trial court
did not err in misstating the date of the offense, treating the criminal complaint as
charging two offenses, or admitting testimony from the victim regarding the content
of text messages. Appellant’s conviction was supported by sufficient evidence and
not against the manifest weight of the evidence. Finally, appellant did not receive
ineffective assistance of counsel.
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
municipal court to carry this judgment into execution. The defendant’s conviction
having been affirmed, any bail pending appeal 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.
FRANK DANIEL CELEBREZZE, III, JUDGE
MARY EILEEN KILBANE, P.J., and
LISA B. FORBES, J., CONCUR