State v. Kronenberg , 2012 Ohio 589 ( 2012 )

[Cite as State v. Kronenberg, 2012-Ohio-589.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96797
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MICHELLE L. KRONENBERG
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-548068
BEFORE: Stewart, J., Blackmon, A.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: February 16, 2012
ATTORNEY FOR APPELLANT
Rick L. Ferrara
2077 East 4th Street
Second Floor
Cleveland, OH 44114
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Ma’rion D. Horhn
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 9th Floor
Cleveland, OH 44113
MELODY J. STEWART, J.:
{¶1} The court found defendant-appellant Michelle Kronenberg guilty of
violating a protection order and guilty of telecommunications harassment. Kronenberg,
who had a 2010 conviction for telecommunications harassment with the same victim, had
been ordered not to contact the victim or his family “in any form” for a period of five
years. Kronenberg admittedly twice called the victim and appeared at his house, but
claimed she did so out of desperation because she was homeless and had no one else to
turn to for help. She argues that she thus lacked the intent to “harass” the victim as
required by the harassment statute, so there was insufficient evidence to convict her and
that, in any event, her conduct should be excused by the necessity to seek aid from the
victim.
I
{¶2} Kronenberg first argues that the state failed to offer sufficient evidence to
sustain a conviction for telecommunications harassment. She argues that R.C.
2917.21(B) requires that one act with a purpose to “abuse, threaten, or harass” and that
the two messages she left with the victim were insufficient to prove that purpose beyond a
reasonable doubt.
{¶3} We determine whether the evidence is sufficient to sustain a verdict by
examining the evidence in the light most favorable to the prosecution and determining
whether any rational trier of fact could have found that the prosecution proved the
essential elements of the crime beyond a reasonable doubt. State v. Yarbrough, 95 Ohio
St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, at ¶ 78, quoting Jackson v. Virginia, 443
U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
{¶4} The state charged Kronenberg under R.C. 2917.21(B), which states that
“[n]o 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).
{¶5} Even though we are obligated to view the facts most favorably to the state,
the facts are undisputed. Kronenberg and the victim had a brief work relationship in the
early 1990s. That relationship terminated after a few months, but Kronenberg and the
victim remained friendly for years. Kronenberg, however, started abusing the
relationship by constantly calling the victim, sometimes calling the victim as many as 100
times a day, with no regard for the hour of the call. This abusive behavior led to several
prosecutions starting in 2007.
{¶6} In 2010, Kronenberg so monopolized the victim’s telephone that no one
else could reach him. If the victim was away from his telephone, Kronenberg would
leave voice messages or directly call his employer to be put through to him. The
breaking point came when Kronenberg began appearing at the victim’s home, causing
him to be concerned for his family. Kronenberg was convicted of telecommunications
harassment with a specification showing that she had previously been convicted of
telephone harassment in 2008. We affirmed the conviction on appeal. See State v.
Kronenberg, 8th Dist. No. 94691, 2011-Ohio-1069, 2011 WL 827580. The trial court
entered a protection order that prohibited Kronenberg from initiating or having contact
with the victim in “any form.”
{¶7} The telephone calls made to the victim by Kronenberg occurred just after
she had been released from the jail term ordered under the 2010 conviction. Kronenberg
testified that she had no place to stay and was running low on money and cigarettes, so
she decided to call the victim to ask for his help. The victim took the call, but did not say
anything. Kronenberg called back later that day saying that her intent in talking to the
victim was that, while she was hurt that the victim had unilaterally terminated their
friendship, she was “willing to let bygones be bygones.” Importantly, Kronenberg
testified that:
I had already, as far as violating the protection order, I already did. I called
him that morning. The reason I called was to leave a message because at
least I would have the chance to explain.
I was going to be arrested for that phone call — that at least I was going to
be able to explain what was going on. And I don’t hold grudges. I needed
help. I was in trouble at that point.
{¶8} The quoted testimony shows beyond all doubt that Kronenberg acted
purposely by violating the protection order when she called and visited the victim.
{¶9} Kronenberg argues that two telephone calls were not enough to constitute
telecommunications harassment. We disagree. The offense of telecommunications
harassment is not a number’s game. R.C. 2917.21(B) can, in some circumstances, be
violated with a single telephone call that rises to the level of harassment, while under
different circumstances, a number of telephone calls might not constitute the kind of
abusive, threatening, or harassing behavior the statute is intended to prohibit. The
specific facts of each case must be examined to determine whether a defendant violated
the statute.
{¶10} Given her prior history of harassing the victim and the very clear terms of
the protection order that prohibited her from having any contact with the victim, one
telephone call by Kronenberg would suffice under the circumstances to prove that she
acted with the intent to harass the victim. The victim testified that he filed charges in the
2010 case because he “wanted her totally out of my life, to forget about me, stop making
any phone calls.” When he saw that Kronenberg had twice called him, he knew it
“wasn’t a cry for help” and that if he answered the call, “it would have started the whole
thing over again.” Kronenberg had an admitted pattern of harassing the victim and her
stated reasons for calling — the need for money and cigarettes — were simply a pretext
for trying to renew a relationship that she knew had been terminated by the victim. By
continuing to call him, even though she knew he did not wish to have any contact,
Kronenberg acted with the requisite purpose to commit telecommunications harassment.
II
{¶11} Kronenberg next argues that the court’s judgment of conviction is against
the manifest weight of the evidence because she lacked any intent to harass or annoy the
victim. She claims that she did not act in an annoying or harassing manner and that she
believed that her relationship with the victim could be salvaged because the victim had
assisted her in the past.
{¶12} The manifest weight of the evidence standard of review requires us to
review 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
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. State v. Otten, 33 Ohio App.3d
339, 340, 515 N.E.2d 1009 (9th Dist.1986). The use of the word “manifest” means that
the trier of fact’s decision must be plainly or obviously contrary to all of the evidence.
This is a difficult burden for an appellant to overcome because the resolution of factual
issues resides with the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212(1967), paragraph one of the syllabus. The trier of fact has the authority to “believe or
disbelieve any witness or accept part of what a witness says and reject the rest.” State v.
Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964).
{¶13} As Kronenberg essentially reiterates the arguments she made in her first
assignment of error, we overrule them by reference to our discussion of those same
arguments. We do note, however, that Kronenberg’s argument that she genuinely
believed that the victim might reconsider the protection order is not worthy of credence.
The protection order specifically stated that the alleged victim:
[C]annot give you legal permission to violate this order. If you go near the
petitioner or other protected persons, even with their consent, you will be
arrested. You act at your own risk if you disregard this WARNING.
(Emphasis sic.)
{¶14} This was at least the fifth prosecution involving Kronenberg’s harassment
of the victim, the last of which resulted in a jail term. She could not credibly testify that
she thought the victim might change his mind and decide to talk to her. Kronenberg
makes much of the fact that she acted out of necessity, but she did not raise necessity as
an affirmative defense at trial. In any event, the court could rationally find that
Kronenberg used necessity as an excuse to make contact with the victim (she testified that
she was hoping the victim would “throw bus fare at me or a couple of cigarettes or
something”). During questioning by the court, it became apparent that Kronenberg
called the victim because she was hurt by the cessation of their friendship, not by any true
monetary need.
{¶15} Kronenberg knew that the victim did not wish to have any contact with her
yet called him in a desperate attempt to rekindle their past relationship. The court did not
lose its way by finding her guilty of telecommunications harassment.
III
{¶16} The third and fourth assignments of error collectively argue that R.C.
2917.21(B) is unconstitutionally vague and overbroad. We reject these arguments
because Kronenberg did not raise the constitutionality of R.C. 2917.21(B) to the trial
court, so she has waived the issue and cannot raise it for the first time on appeal. State v.
Awan, 22 Ohio St.3d 120, 489 N.E.2d 277 (1986), syllabus.
{¶17} Judgment affirmed.
It is ordered that appellee recover of appellant its 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 Cuyahoga
County Court of Common Pleas 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.
MELODY J. STEWART, JUDGE
PATRICIA ANN BLACKMON, A.J., and
EILEEN A. GALLAGHER, J., CONCUR