State v. Ham , 2017 Ohio 9189 ( 2017 )

[Cite as State v. Ham, 2017-Ohio-9189.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-170043
TRIAL NO. 16CRB-34134
Plaintiff-Appellee, :
vs. :
O P I N I O N.
CLARENCE HAM, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed and Cause Remanded
Date of Judgment Entry on Appeal: December 22, 2017
Paula Boggs Muething, City Solicitor, Natalia Harris, City Prosecutor, and
Jennifer Bishop, Assistant City Prosecutor, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and David Hoffmann,
Assistant Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Judge.
{¶1} Clarence Ham appeals the judgment of the Hamilton County
Municipal Court convicting him of telecommunications harassment. We
affirm the judgment of the trial court, but remand the cause to the trial court
for a nunc pro tunc entry to reflect that Ham was convicted of the amended
telecommunications charge.
Facts
{¶2} Clarence Ham was charged with one count of
telecommunications harassment in violation of R.C. 2917.21(B), a
misdemeanor of the first degree. The complaint alleged that Ham had made a
telecommunication with the purpose to threaten Kiesha Rice. The complaint
further alleged that Ham contacted Rice multiple times on her cell phone and
made threats to cause her bodily harm.
{¶3} Ham pled not guilty and proceeded to a bench trial. Prior to
trial, the state clarified that the harassment started on November 9, 2016 and
continued until November 20, 2016. Ham acknowledged that he was on
notice that the alleged harassment continued over that period of time, and
that the state intended to prove that Ham continued to contact Rice after
being asked to stop.
{¶4} Rice was the sole witness for the state. Rice testified that she
had had a relationship with Clarence Ham, whom she initially knew as Mike
Cottman. A week before the harassment started, Ham was driving her car
and got into a car accident. Eventually, he was cited for the accident and for
fleeing the scene of the accident. Rice learned his real name during the
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OHIO FIRST DISTRICT COURT OF APPEALS
investigation into the car accident. When Ham learned of the charges he was
facing, he repeatedly contacted Rice.
{¶5} Rice testified that she told Ham to stop calling her after
receiving multiple calls on November 9, 2016. Ham continued to contact her
until November 19, 2016. She stated that he called her from numerous
different numbers, texted her, and contacted her through Facebook
messenger and her Facebook page. Rice testified that, during one call, Ham
threatened to kill her and her family to avoid going to jail.
{¶6} Rice had documented the text messages, Facebook posts, and
messages sent through Facebook messenger by taking screen shots with her
cell phone. One of the messages, which Ham shared with her family
members, claimed she had AIDS, and they would die together. The other
message he shared included a photograph of his penis. In another message,
he threatened to shoot up a child’s birthday party.
{¶7} Ham repeatedly attempted to video call her through Facebook
messenger. Rice testified that she blocked his telephone number and blocked
him on Facebook, but he continued to contact her using call block and fake
numbers. She knew Ham was contacting her through these numbers based
on the content of the messages. When he continued to ignore her requests to
stop contacting her, she called the police. The communications stopped when
Ham was arrested and incarcerated.
{¶8} After Rice testified, the state rested, and Ham moved for an
acquittal. The trial court denied the motion, and the defense rested and
renewed its motion for an acquittal, which was denied.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶9} The state moved to amend the complaint to conform to the
evidence. Specifically, the state requested that the telecommunications
harassment charge be amended to reflect a violation of R.C. 2917.21(A)(5),
which prohibits a person from continuing to make telecommunications after
the recipient has told the caller to stop, instead of the (B) section, which
prohibits a person from making a telecommunication with purpose to abuse,
threaten, or harass another person. Ham objected, arguing that the city
should be required to proceed under the (B) section because all of the
evidence had been submitted. The court granted the motion.
{¶10} The trial court found Ham guilty. In reaching its decision, the
court found that Ham had threatened to kill Rice and her family and harassed
her by persistently contacting her. The court further found that Ham
continued to contact Rice after she told him to stop. Finally the court found
that Rice’s testimony was “completely, totally believable.” The court
sentenced Ham to 180 days in jail, gave him credit for the 58 days he had
served, and remitted the costs. Ham appealed raising two assignments of
error.
The Amendment of the Complaint
{¶11} In his first assignment of error, Ham argues that the trial
court abused its discretion in amending the complaint at the close of the
evidence. Specifically, Ham claims the amendment changed the substance of
the offense, preventing him from realizing the importance of the evidence
until the end of the trial. Ham further argues that the state was aware of the
additional claim before trial because the police report stated that Ham
continued to call Rice from November 9-21 after being told to stop.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶12} As relevant here, Crim.R. 7(D) provides, “The court may at
any time before, during, or after trial amend the * * * complaint * * * in
respect to any defect, imperfection, or omission in form or substance, or of
any variance with the evidence, provided no change is made in the name or
identity of the crime charged.” An amendment that changes the name or
identity of the charged offense constitutes reversible error. State v. Kates, 169
Ohio App.3d 766, 2006-Ohio-6779, 865 N.E.2d 66, ¶ 13 (10th Dist.).
{¶13} If the amendment does not change the name or identity of
the crime charged, then we apply an abuse-of-discretion standard to review
the trial court's decision to allow a Crim.R. 7(D) amendment. State v.
Beach, 148 Ohio App.3d 181, 2002-Ohio-2759, 772 N.E.2d 677, ¶ 23 (1st
Dist.). The term “abuse of discretion” connotes more than an error of law or
judgment; it implies that the trial court's attitude is unreasonable, arbitrary,
or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144(1980).
{¶14} In order to constitute reversible error, the defendant must
show not only that the trial court abused its discretion, but also that the
amendment hampered or otherwise prejudiced the defense. Beach at ¶ 23. If
an amendment changes the substance of the complaint and the proof, the
defendant is entitled to a reasonable continuance if he was misled or
prejudiced by the variance. Crim.R. 7(D).
Legal Analysis
{¶15} Ham concedes that the amendment did not change the
name or identity of the charged offense. The name of the offense,
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OHIO FIRST DISTRICT COURT OF APPEALS
telecommunications harassment, remained the same after the amendment,
and both offenses were first-degree misdemeanors.
{¶16} Instead, Ham argues that the trial court abused its
discretion because the amended charge relied on different facts, and Ham was
prejudiced because he did not realize the importance of those facts during the
trial. We first note that Ham admitted that he was notified of all the
allegations against him prior to the start of trial, and that the state intended to
prove that Ham continued to contact her after being asked to stop.
Additionally, Ham did not seek a continuance, request an opportunity to
present additional evidence, or inform the trial court that he was misled or
prejudiced by the amendment. Based upon this record, we cannot conclude
that the trial court abused its discretion in amending the charge.
{¶17} Furthermore, the trial court specifically found that the state
proved that Ham had committed telecommunications harassment as initially
charged because he threatened and harassed Rice, and as amended, because
he continued to contact Rice after she asked him to stop. Therefore, we find
that Ham was not prejudiced by the amendment. The first assignment of
error is overruled.
Sufficiency and Manifest Weight
{¶18} In his second assignment of error, Ham argues that the
guilty finding was not supported by sufficient evidence and was contrary to
the manifest weight of the evidence.
{¶19} In a challenge to the sufficiency of the evidence, the
question is whether, after viewing the evidence in the light most favorable to
the state, any rational trier of fact could have found all the essential elements
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OHIO FIRST DISTRICT COURT OF APPEALS
of the crime proved beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d
259, 273, 574 N.E.2d 492 (1991), paragraph two of the syllabus. When
considering a challenge to the weight of the evidence, the court must review
the entire record, weigh the evidence and all reasonable inferences, consider
the credibility of the witnesses, and determine whether, in resolving conflicts
in the evidence, the trier of fact clearly lost its way and created a manifest
miscarriage of justice. State v. Thompkins, 78 Ohio St.3d 380, 387, 678
N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d
717 (1st Dist.1983), paragraph three of the syllabus.
{¶20} Ham contends that the evidence was insufficient and the
conviction was against the manifest weight of the evidence because the state
failed to present credible evidence that Ham contacted Rice after being told to
stop. Ham primarily argues that Rice’s testimony was not credible.
{¶21} However, it is well settled law that matters as to the credibility
of witnesses are for the trier of fact to resolve. See State v. Railey, 2012-Ohio-
4233, 977 N.E.2d 703, ¶ 14 (1st Dist.). Here, the trial court specifically found
that Rice’s testimony was “completely, totally believable,” and her testimony
was sufficient evidence to support his telecommunications-harassment
conviction. Based upon our review of the record, we cannot say that the court
clearly lost its way and created such a manifest miscarriage of justice that we
must reverse Ham’s conviction and order a new trial. Therefore, we overrule
Ham’s second assignment of error.
Conclusion
{¶22} We note that the judgment entry of conviction does not reflect
that the charge was amended from a telecommunications-harassment
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OHIO FIRST DISTRICT COURT OF APPEALS
violation under R.C. 2917.21(B) to a violation under R.C. 2917.21(A)(5).
Accordingly, we affirm the judgment of the trial court. However, we remand
the cause to the trial court to issue a nunc pro tunc entry so that the judgment
entry of conviction reflects that Ham was convicted of the amended charge of
telecommunications harassment in violation of R.C. 2917.21(A)(5).
Judgment affirmed and cause remanded.
MOCK, P.J., concurs.
MYERS, J., concurs in judgment only.
Please note:
The court has recorded its own entry this date.
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