State v. Haugh , 2024 Ohio 79 ( 2024 )

[Cite as State v. Haugh, 2024-Ohio-79.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 2023AP020009
:
WILSON C. HAUGH, JR. :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County
Court of Common Pleas, Case No.
2021CR030093
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: January 11, 2024
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
RYAN STYER GEORGE URBAN
TUSCARAWAS CO. PROSECUTOR 116 Cleveland Ave. NW, Ste. 808
KRISTINE W. BEARD Canton, OH 44702
125 E. High Ave.
New Philadelphia, OH 44663
[Cite as State v. Haugh, 2024-Ohio-79.]
Delaney, J.
{¶1} Appellant Wilson C. Haugh, Jr. appeals from the March 15, 2023 Judgment
Entry on Sentencing of the Tuscarawas County Court of Common Pleas. Appellee is the
state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} The following evidence is adduced from the record of appellant’s jury trial.
{¶3} Appellant and Jane Doe were married for 7 years and lived in Tuscarawas
County. They had one child together, Mary Doe. In 2014, Jane Doe left the marital
residence, filed for an annulment, and obtained a civil protection order (CPO) against
appellant which expired in one year. Appellant moved to Lorain County and filed for
divorce there. The divorce was final in October 2015. Appellant continued to live in Lorain
County, and Jane and Mary Doe continued to live in Tuscarawas County.
{¶4} Jane Doe’s original CPO expired and she sought another. On March 6,
2018, a “Domestic Violence Civil Protection Order (CPO) Full Hearing (R.C. 3113.31)”
was filed in the Tuscarawas County Court of Common Pleas. The named protected
persons are Jane Doe and Mary Doe, and the expiration date of the CPO is March 1,
2023. Respondent is appellant, who is ordered to, e.g., not initiate or have any contact
with Jane and Mary at their residence, workplace, or school. The order defines “contact”
as, e.g., by delivery service, “social networking media,” and communications by any
means, directly or through another person. The Sheriff’s Return states the CPO was
personally served on appellant on March 16, 2018.1
1
Appellee’s Exhibit A.
[Cite as State v. Haugh, 2024-Ohio-79.]
{¶5} In 2018, Jane called police because appellant violated the CPO and appellant
was ultimately convicted of misdemeanor violation of a protection order pursuant to R.C.
2919.27. Appellee’s Exhibit B is a certified copy of appellant’s conviction in the New
Philadelphia Municipal Court upon one count of violation of a protection order. Appellant
entered a counseled plea of no contest and was found guilty on or around April 23, 2018.
{¶6} On or around November 10, 2020, an Amazon package arrived at the
residence of Jane and Mary Doe, addressed to Mary. The package contained a blanket.
Appellee’s Exhibit C is a photograph taken by Officer Boyd of the New Philadelphia Police
Department. The photo shows a blanket depicting an air-mail envelope containing the
following printed message: “To My Daughter: Even when I’m not close by, I want you to
know I love you and I’m so proud of you. Wrap yourself up in this and consider it a big
hug! Love, Dad.” During his pro se opening statement at trial and throughout the
proceedings, appellant admitted he sent Mary Doe this blanket. T. 128.
{¶7} On January 8, 2021, Jane Doe reported appellant contacted her in a group
chat via Facebook Messenger. Appellee’s Exhibit D is a printout of a Facebook
Messenger group chat including two postings of a meme, both posted by “Wilson,” of a
menacing Santa Claus figure with the words, “PARENTAL ALIENATION[:] If a child only
sees one parent this holiday YOU KNOW WHO THE ABUSER IS.” Jane testified the
Facebook Messenger group is “old” but includes Jane, appellant, and family members on
both sides.
{¶8} Jane reported both incidents to the New Philadelphia Police Department
because appellant violated the terms of the CPO and put her in fear for her own and
[Cite as State v. Haugh, 2024-Ohio-79.]
Mary’s safety. Officers confirmed appellant’s prior conviction and collected evidence,
including the photograph of the blanket and the printout of the group chat.
{¶9} Appellant was charged by indictment with one count of violation of a
protection order pursuant to R.C. 2919.27(A)(1) and (B)(3)(C), a felony of the fifth degree,
and entered a plea of not guilty. Appellant was represented by several attorneys in the
history of the case but represented himself at trial with standby counsel. Appellant moved
for a judgment of acquittal at the close of the evidence; the motion was overruled.
{¶10} Appellant was found guilty as charged. The jury also found appellant had
a prior conviction for violation of a CPO. The trial court ordered a pre-sentence
investigation and deferred sentencing. Appellant was later sentenced to a term of one
year of community-control supervision and 75 hours of community service.
{¶11} Appellant now appeals from the trial court’s entry of conviction and
sentence.
{¶12} Appellant raises two assignments of error:
ASSIGNMENTS OF ERROR
{¶13} “I. APPELLANT’S CONVICTIONS WERE AGAINST THE MANIFEST
WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”
{¶14} “II. THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANT’S
CRIMINAL RULE 29 MOTION FOR ACQUITTAL BECAUSE THE STATE FAILED TO
PRODUCE SUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION AGAINST
APPELLANT.”
[Cite as State v. Haugh, 2024-Ohio-79.]
ANALYSIS
I., II.
{¶15} Appellant’s two assignments of error are related and will be considered
together. He argues his conviction upon one count of violation of a protection order is not
supported by sufficient evidence and is against the manifest weight of the evidence, and
the trial court should have granted his motion for acquittal pursuant to Crim.R. 29(A). We
disagree.
{¶16} Appellant argues his conviction is supported by insufficient evidence. 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.”
{¶17} Appellant argues that the trial court erred when it denied his Crim.R. 29
motion for acquittal. Pursuant to Crim.R. 29(A), a court “shall order the entry of the
judgment of acquittal of one or more offenses * * * if the evidence is insufficient to sustain
a conviction of such offense or offenses.” Because a Crim.R. 29 motion questions the
[Cite as State v. Haugh, 2024-Ohio-79.]
sufficiency of the evidence, “[w]e apply the same standard of review to Crim.R. 29 motions
as we use in reviewing the sufficiency of the evidence.” Whether the evidence is legally
sufficient to sustain a verdict is a question of law. Id. at ¶ 38, citing State v. Thompkins,
78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). “Sufficiency is a test of adequacy.” Id.“We construe the evidence in a light most favorable to the prosecution and determine
whether a rational trier of fact could have found the essential elements of the offense
proven beyond a reasonable doubt.” Id., citing State v. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492 (1991), paragraph two of the syllabus.
{¶18} Appellant also argues his conviction is against the manifest weight of the
evidence. 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 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.
{¶19} Upon a challenge to the weight of the evidence, the issue is whether the
jury created a manifest miscarriage of justice in resolving conflicting evidence, even
though the evidence of guilt was legally sufficient. State v. Ashcraft, 5th Dist. Richland
No. 2021-CA-0024, 2023-Ohio-2378, ¶ 14, citing State v. Thompkins, 78 Ohio St.3d 380,
386–387, 678 N.E.2d 541 (1997). “Weight of the evidence” addresses the evidence's
[Cite as State v. Haugh, 2024-Ohio-79.]
effect of inducing belief. State v. Thompkins, supra, 78 Ohio St.3d at 386-387, 678 N.E.2d
541 (1997), State v. Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶ 83.
When a court of appeals reverses a judgment of a trial court on the basis that the verdict
is against the weight of the evidence, the appellate court sits as a “thirteenth juror” and
disagrees with the fact finder's resolution of the conflicting testimony. Thompkins at 387,
678 N.E.2d 541, citing Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652(1982) (quotation marks omitted); State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202,
865 N.E.2d 1244, ¶ 25, citing Thompkins.
{¶20} Once the reviewing court finishes its examination, an appellate court may
not merely substitute its view for that of the jury, but must find that “ ‘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, supra, 78 Ohio St.3d at 387,
quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist.
1983). The Ohio Supreme Court has emphasized: “ ‘[I]n determining whether the
judgment below is manifestly against the weight of the evidence, every reasonable
intendment and every reasonable presumption must be made in favor of the judgment
and the finding of facts. * * *.’ ” Eastley v. Volkman, 132 Ohio St.3d 328, 334, 972 N.E.2d
517, 2012-Ohio-2179, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80,
461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review,
Section 603, at 191–192 (1978).
{¶21} Appellant was found guilty upon one count of violation of a protection order
pursuant to R.C. 2919.27(A)(1) and (B)(3)(a), a felony of the fifth degree. Those sections
state:
[Cite as State v. Haugh, 2024-Ohio-79.]
(A) No person shall recklessly violate the terms of any of the
following:
(1) A protection order issued or consent agreement approved
pursuant to section 2919.26 or 3113.31 of the Revised Code;
* * * *.
(B)(1) Whoever violates this section is guilty of violating a
protection order.
* * * *.
(3) Violating a protection order is a felony of the fifth degree if
the offender previously has been convicted of, pleaded guilty to, or
been adjudicated a delinquent child for any of the following:
(a) A violation of a protection order issued or consent
agreement approved pursuant to section 2151.34, 2903.213,
2903.214, 2919.26, or 3113.31 of the Revised Code[.]
{¶22} R.C. 2901.22(C) defines the culpable mental state of “reckless” as:
A person acts recklessly when, with heedless indifference to
the consequences, the person disregards a substantial and
unjustifiable risk that the person's conduct is likely to cause a certain
result or is likely to be of a certain nature. A person is reckless with
respect to circumstances when, with heedless indifference to the
consequences, the person disregards a substantial and unjustifiable
risk that such circumstances are likely to exist.
[Cite as State v. Haugh, 2024-Ohio-79.]
{¶23} Appellant argues his conduct did not violate the terms of the CPO because
he reasonably believed the terms of a Lorain County domestic relations order “overrode
the issues of contact with the minor child.” Brief, 6. Appellant further argues sending a
“loving note to a child from her father” cannot be a criminal violation and there is no
evidence the parental-alienation meme was intended to be seen by Jane Doe.
{¶24} We disagree with appellant’s characterization of the evidence. As appellee
points out, appellant was charged with one violation for a course of conduct in which he
contacted Mary and Jane Doe twice. Appellee established Jane Doe obtained a CPO on
March 6, 2018, which was valid for 5 years. The terms of the CPO stated appellant was
to have no contact with Jane and Mary Doe directly or indirectly, including by delivery and
by electronic communication. Appellant admittedly sent the package containing the
blanket to Mary Doe at the Doe residence, although he implies this contact was permitted
by his visitation order from Lorain County. Appellant claims there is no evidence the
Facebook Messenger meme was posted by him, but the evidence at trial showed the
meme was posted in a Messenger group containing appellant and Jane Doe; the meme
stated it was posted by “Wilson;” the context of the message was consistent with
appellant’s claims against Jane; and there was a strong likelihood Jane would see the
meme or learn of it because she and her family members were in the Facebook group.
{¶25} We find sufficient evidence that appellant’s conduct was reckless in
contacting Mary and Jane Doe in violation of the CPO. Appellant knew of the existence
of the CPO and blatantly disregarded its terms. See, State v. Morgan, 5th Dist. Stark No.
2009 CA 00130, 2010-Ohio-4858, ¶ 25 [despite out-of-state domestic relations order,
defendant was reckless in violating terms of CPO prohibiting harassing communication];
[Cite as State v. Haugh, 2024-Ohio-79.]
State v. Zobel, 5th Dist. Tuscarawas No. 2016 AP 03 0019, 2016-Ohio-5751, ¶ 43 [state
presented evidence CPO was in effect when defendant was arrested, defendant knew it
was in effect, and defendant entered onto victim’s property in violation of such order];
State v. Devoll, 5th Dist. Muskingum No. CT2023-0015, 2023-Ohio-3574, ¶¶ 13-14
[defendant’s conduct reckless when he assumed CPO had been lifted despite no
evidence of such].
{¶26} Moreover, we note appellant was convicted of violating the CPO in 2018, a
fact found by the jury. His continued contact with the victims was therefore reckless as
to violating a civil protection order. State v. Hall, 5th Dist. No. 12CAA030017, 2013-Ohio-
660, 989 N.E.2d 111, ¶ 29, appeal allowed, cause remanded on other grounds, 135 Ohio
St.3d 1456, 2013-Ohio-2285, 988 N.E.2d 576.
{¶27} Viewing the evidence in a light most favorable to appellee, we find the jury
could have found the essential elements of violation of a protection order proven beyond
a reasonable doubt. State v. Ybarra, 5th Dist. Licking No. 17-CA-26, 2017-Ohio-9144, ¶
26 [defendant violated CPO by driving through trailer park where victim lived]. The trial
court therefore did not err in overruling the motion for acquittal.
{¶28} We further find this is not an “exceptional case in which the evidence weighs
heavily against the conviction.” State v. Thompkins, 78 Ohio St.3d 380, 386–387, 678
N.E.2d 541 (1997), quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. Based upon
the entire record in this matter we find appellant's conviction for violation of a CPO is not
against the manifest weight of the evidence. To the contrary, the jury appears to have
fairly and impartially decided the matters before them. The jury heard the witnesses,
evaluated the evidence, and was convinced of appellant's guilt.
[Cite as State v. Haugh, 2024-Ohio-79.]
{¶29} Appellant’s two assignments of error are overruled.
CONCLUSION
{¶30} Appellant’s two assignments of error are overruled and the judgment of the
Tuscarawas County Court of Common Pleas is affirmed.
By: Delaney, J.,
Hoffman, P.J. and
Wise, J., concur.