State v. Peric , 2019 Ohio 1164 ( 2019 )


Menu:
  • [Cite as State v. Peric, 2019-Ohio-1164.]
    IN THE COURT OF APPEALS
    ELEVENTH APPELLATE DISTRICT
    LAKE COUNTY, OHIO
    STATE OF OHIO,                                       :      OPINION
    Plaintiff-Appellee,                 :
    CASE NOS. 2018-L-089
    - vs -                                       :                2018-L-090
    ANTE T. PERIC,                                       :
    Defendant-Appellant.                :
    Criminal Appeals from the Willoughby Municipal Court, Case Nos. 2017 CRB 04141
    and 2017 CRB 02912.
    Judgment: Affirmed.
    Richard J. Perez, City of Willoughby Prosecutor, and Leslie S. Johns, 4230 State
    Route 306, Suite 240, Willoughby, OH 44094 (For Plaintiff-Appellee).
    Mandy J. Gwirtz, Mandy Gwirtz, LLC, 20050 Lakeshore Boulevard, Euclid, OH 44123
    (For Defendant-Appellant).
    MATT LYNCH, J.
    {¶1}     Defendant-appellant, Ante T. Peric, appeals from the judgment of the
    Willoughby Municipal Court, denying his Motion for Competency Evaluation, and from
    his convictions for Violating a Protection Order. The issues to be determined by this
    court are whether a trial court errs in denying a motion for competency evaluation when
    there is no doctor’s testimony as to the defendant’s competency, whether offenses must
    be joined when they arise from distinct events on different dates, and whether
    convictions for Violating a Protection Order are supported by the evidence when the
    defendant repeatedly contacts the victim, although some contacts referenced their
    children and visitation. For the following reasons, we affirm the judgment of the lower
    court.
    {¶2}   On August 7, 2017, a Complaint was filed in Willoughby Municipal Court
    Case No. 17CRB02912, charging Peric with Violating a Protection Order, a
    misdemeanor of the first degree, in violation of R.C. 2919.27(A)(1), for conduct
    occurring between July 3 and August 6, 2017. A second Complaint was filed on August
    10, 2017, for the same offense in Case No. 17CRB0249, for conduct occurring on
    August 9, 2017.       A third Complaint was filed November 14, 2017, in Willoughby
    Municipal Court Case No. 17CRB04141, charging Peric with an additional count of the
    same offense, for conduct occurring on November 8, 2017.
    {¶3}   Following various pro se filings and the appointment of defense counsel,
    on May 3, 2018, Peric, through counsel, filed a Motion for Competency Evaluation, to
    which was attached a letter from Peric’s general physician, Dr. Beena Sreekumar. The
    letter stated that Peric “is not able to make any important decisions until after his
    consultation with a neurologist.” The trial court set the matter for a hearing at which
    both parties would be permitted to submit evidence.
    {¶4}   At the hearing, defense counsel presented medical records which
    demonstrated Peric had recently suffered from a seizure, had a history of seizure
    disorder, and had been referred to an epilepsy specialist. The specialist recommended
    hospitalization to determine the proper treatment. Another letter from Dr. Sreekumar
    was presented, in which she stated that Peric had reported difficulty remembering and
    focusing after his seizure and, in her opinion, “he is unable to properly understand and
    2
    make suitable decisions in complex matters such as legal proceedings” at the present
    time. Defense counsel also contended that Peric had been unable to assist in his
    defense because he is “focused on things that we can’t do because it’s impossible to be
    done.” The court inquired of Peric regarding the court proceedings. Peric indicated that
    he was “being accused of something that didn’t happen.” Peric expressed that he
    believed he would be able to go home to his children regardless of whether he was
    found innocent or guilty, but also indicated understanding that the court decides the
    result. He indicated a lack of trust in the courts, belief that he had been prosecuted
    unfairly, and was aware that his lawyer’s role was to give assistance. He stated that
    sometimes his head hurts too much to talk about his case.
    {¶5}   On May 16, 2018, the trial court issued a Judgment Entry, noting that
    Peric had failed to present witnesses at the hearing. It found that Peric failed to raise a
    genuine question as to his competency.
    {¶6}   A jury trial was held on May 18, 2018. The following pertinent testimony
    was presented:
    {¶7}   Patrolman Gary Slay of the City of Willoughby Police Department testified
    that on August 6, 2017, Joy Peric reported a violation of a protection order she had
    against Ante Peric, stating he had called her five times on that date. Joy also indicated
    that on July 3, 2017, Peric had called her about 30 times, leaving 30 voicemails. Slay
    witnessed Joy’s call logs, which showed Peric’s number had called her and
    photographs of these logs were presented. Some of the voicemails were played for the
    jury, in which Peric stated that Joy would be “going to prison” due to her failure to allow
    phone calls between himself and their children. Slay testified that the protection order
    3
    became effective March 14, 2016, and he believed Peric was in violation since it
    provided that Peric was to communicate with Joy only through the Our Family Wizard
    application for issues concerning the minor children.
    {¶8}   On cross-examination, Slay could not recall if he checked the phone
    number Joy alleged to be Peric’s to determine if it was his although he recognized
    Peric’s voice in the voicemails.
    {¶9}   Patrolman Kyle Bucher of the Willoughby Police Department was
    dispatched to Joy’s residence on August 9, 2017, at which time she informed him that
    Peric’s phone number called her phone with FaceTime, which she did not answer.
    Bucher identified the number as belonging to Peric.
    {¶10} Patrolman Terrell Travis Stevenson of the Willoughby Police Department
    testified that on November 8, 2017, Joy reported that Peric sent her a message through
    Our Family Wizard on that date about filing a federal lawsuit. He observed the message
    on her phone and believed this was impermissible under the protection order.        On
    cross-examination, Stevenson indicated that in determining there was a violation he did
    not review the parties’ custody arrangement.
    {¶11} Joy Peric testified that she and Peric are going through divorce
    proceedings. She sought a protection order against Peric and the two entered into a
    mutual protection order, which became effective on March 14, 2016. Pursuant to her
    understanding, the parties were not to communicate except within the Our Family
    Wizard app solely for issues concerning the children. Effective June 7, 2017, pursuant
    to the agreement of the parties, Peric was permitted by court order to have FaceTime or
    telephone contact with the children, on Joy’s phone, between 8:30 and 9 p.m. on
    4
    alternating days.
    {¶12} Joy testified that on July 3, 2017, Peric called her numerous times
    between around 8:45 to 9 p.m. and continuing until 9:34 p.m. that night and left
    threatening and other messages. Regarding August 6, 2017, she testified that the two
    were ordered to use Our Family Wizard to communicate about the children and Peric
    sent a message which said: “You are to immediately comply with court order parenting
    time now! Quit taking the phone from the kids and turning it off you evil hateful bitch.”
    {¶13} On November 8, 2017, Peric sent her a message through Our Family
    Wizard titled “Federal Lawsuit Filed,” which accused her and the police of lying, and
    stated that he had filed a federal lawsuit against her, that she had lied to take his
    children for financial gain, and “you need to know that unless you tell everyone you’re
    going to go to prison.”
    {¶14} Following the conclusion of the prosecution’s case, Peric moved for
    acquittal pursuant to Crim.R. 29, which motion was denied by the trial court.
    {¶15} The defense called Maureen Kelly, the Clerk of Courts for Lake County.
    She testified regarding the docket and records for the Perics’ domestic relations case.
    She identified a magistrate’s decision that ordered phone contact between Peric and his
    children from 8:30 to 9 p.m. but noted that the docket contained a typographical error
    stating it was from 8:30 to 9:30 p.m., which was not corrected until April of 2018. Kelly
    testified that the magistrate’s decision reflected it had been sent to both parties.
    {¶16} At the conclusion of its case, the defense renewed the Crim.R. 29 motion,
    which was denied.
    {¶17} On the same date, the jury found Peric guilty of two counts of Violating a
    5
    Protection Order for the incidents arising from Case No. 17CRB02912, occurring on
    July 3, 2017 through August 6, 2017, and Case No. 17CRB04141, occurring on
    November 8, 2017. He was acquitted of the third charge.
    {¶18} A sentencing hearing was held on May 31, 2018, at which the court
    sentenced Peric to a term of 180 days in jail with 90 suspended for each of the two
    offenses, with the sentences to run consecutively.
    {¶19} Peric timely appeals and raises the following assignments of error:
    {¶20} “[1.] The trial court committed error when it denied defendant-appellant’s
    motion for a competency evaluation.
    {¶21} “[2.] The trial court committed plain error when it [failed to] sever the
    offenses for trial, in violation of his rights to due process of law under the Fourteenth
    Amendment of the U.S. Constitution and Sections 10 and 16, Article I of the
    Constitution.
    {¶22} “[3.] The defendant-appellant’s constitutional rights to due process and
    fair trial under the Fifth, Sixth and Fourteenth Amendments to the United States
    Constitution and Article I, Sections 10 and 16 of the Ohio Constitution were prejudiced
    by the ineffective assistance of counsel.
    {¶23} “[4.] The trial court erred to the prejudice of the defendant-appellant in
    denying his motion for acquittal made pursuant to Crim.R. 29(A).
    {¶24} “[5.] The trial court erred to the prejudice of the defendant-appellant when
    it returned a verdict of guilty against the manifest weight of the evidence.”
    {¶25} In his first assignment of error, Peric argues that the trial court erred when
    it did not order a competency evaluation to be completed when a genuine question as to
    6
    competency was raised during the initial hearing.
    {¶26} R.C. 2947.37(B) provides that, if the issue of the defendant’s competence
    to stand trial is raised prior to the commencement of trial, “the court shall hold a hearing
    on the issue as provided in this section,” which sets forth procedures such as the timing
    of the hearing and evidence to be presented. R.C. 2945.371(A) further provides that
    “[i]f the issue of a defendant’s competence to stand trial is raised * * * the court may
    order one or more evaluations of the defendant’s present mental condition * * *.”
    {¶27} In reading these competency statutes together, this court has held that
    they “support the inference that when the initial hearing on a competency motion is held,
    the trial court is only required to give the defendant, or his counsel, the chance to submit
    evidence on the issue.” State v. Bailey, 
    90 Ohio App. 3d 58
    , 67, 
    627 N.E.2d 1078
    (11th
    Dist.1992). If the evidence presented at that initial hearing “raises a genuine question
    as to the defendant’s competency, the court can order that one or more evaluations be
    performed. If it does not, the court can find the defendant competent and proceed to
    trial.” 
    Id. {¶28} “When
    the issue of a defendant’s competency is raised, it is within the trial
    court’s discretion whether an evaluation should be conducted.” State v. Locke, 11th
    Dist. Lake No. 2014-L-053, 2015-Ohio-1067, ¶ 102; State v. Matharu, 2d Dist.
    Montgomery No. 26985, 2017-Ohio-8251, ¶ 15 (“we review the decision of the trial court
    regarding competency evaluations for an abuse of discretion”). An abuse of discretion
    constitutes “failure to exercise sound, reasonable, and legal decision-making.” State v.
    Long, 11th Dist. Lake No. 2017-L-094, 2018-Ohio-3013, ¶ 52, citing State v. Beechler,
    2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶ 62, quoting Black’s Law Dictionary 11
    7
    (8th Ed.2004).
    {¶29} Since a defendant is presumed to be competent to stand trial, “at the initial
    hearing, the burden is upon the defendant, or his counsel, to submit enough evidence to
    put the question at issue.” Bailey at 67; State v. Hackathorn, 11th Dist. Ashtabula No.
    2004-A-0008, 2004-Ohio-6694, ¶ 19. “Ohio law expressly states that a defendant is
    presumed to be competent unless it can be demonstrated that he is incapable of
    understanding the proceedings against him or cannot fully assist in his defense.” State
    v. Tuff, 11th Dist. Lake Nos. 2010-L-082 and 2010-L-083, 2011-Ohio-6846, ¶ 26.
    {¶30} A hearing was held following Peric’s request for a competency evaluation.
    At that hearing, no testimony was presented to establish that Peric’s health conditions
    were causing the alleged lack of competency. A letter from his general physician was
    introduced but the court had no ability to inquire further into her opinion. While medical
    records did show that Peric had suffered from seizures, there was no testimony to
    demonstrate whether this caused him to be incompetent. Suffering from a physical or
    mental condition alone does not support a finding of incompetence. Hackathorn at ¶ 19.
    Further, while it was evident that Peric had been ordered not to drive or work for a
    period of time due to his seizures, this does not mean he was incapable of assisting in
    his defense. A brain disorder and seizures alone have not been found sufficient to
    render a defendant incompetent. State v. Ramey, 10th Dist. Franklin No. 96APA08-
    1044, 
    1997 WL 101666
    , *2 (Mar. 6, 1997).
    {¶31} At the hearing, defense counsel stated various concerns with Peric’s
    competency, emphasizing that he made “outrageous demands,” such as repeatedly
    requesting dismissal. This does not prove he was unable to assist in his defense and is
    8
    not even particularly uncommon in criminal cases. Peric had been able to file various
    motions in the matter pro se prior to the recent appointment of counsel and could
    express the general role of the court and his understanding of the charges being faced.
    He knew he had been accused of violating a court order and confirmed that he
    understood that the judge could determine the outcome, although he believed he should
    be released from custody. He explained the role of a prosecutor and that defense
    counsel was to “give him assistance.” While he was focused on the opinion that he was
    wrongfully accused and expressed distrust of police, lawyers, and the legal system, he
    was capable of understanding the general process of the trial. Deference on issues
    relating to the defendant’s behavior and competence “is best granted to those ‘who see
    and hear what goes on in the courtroom,’” i.e., the trial judge. (Citation omitted.) State
    v. Mattox, 11th Dist. Ashtabula No. 2005-A-0053, 2006-Ohio-2937, ¶ 54.
    {¶32} When reviewing the entirety of the record, we cannot hold that the trial
    court abused its discretion in considering the evidence before it and finding that Peric
    failed to meet his burden to demonstrate a competency evaluation was warranted,
    especially given the lack of testimony to support the contention that his seizure
    condition impacted his competency.      See 
    id. at ¶
    26-54 (where the defendant had
    “angry and accusatory outbursts,” repeatedly questioned the constitutionality of the
    charges, contended that evidence had been tampered with, and stated that the charges
    should be dismissed, this was insufficient to warrant an inquiry into his competence).
    {¶33} The first assignment of error is without merit.
    {¶34} In his second assignment of error, Peric argues that the trial court erred
    when it joined together his three charges into one trial since they were based on
    9
    separate acts.
    {¶35} Crim.R. 8(A) provides that multiple offenses may be charged in the same
    indictment or complaint if they “are of the same or similar character, or are based on the
    same act or transaction, or are based on two or more acts or transactions connected
    together or constituting parts of a common scheme or plan, or are part of a course of
    criminal conduct.” “If it appears that a defendant or the state is prejudiced by a joinder
    of offenses or of defendants in an indictment, information, or complaint * * *, or by such
    joinder for trial together of indictments, informations or complaints * * *, the court shall
    order an election or separate trial of counts * * * or provide such other relief as justice
    requires.” Crim.R. 14. Joinder of offenses is “favored in the law” as it conserves judicial
    resources, “lessens the not inconsiderable expenses of multiple trials, diminishes
    inconvenience to witnesses, and minimizes the possibility of incongruous results in
    successive trials before different juries.” State v. Thomas, 
    61 Ohio St. 2d 223
    , 225, 
    400 N.E.2d 401
    (1980).
    {¶36} Generally, the trial court’s refusal to separate charges for trial is reviewed
    under an abuse of discretion standard. State v. Martin, 11th Dist. Lake Nos. 2017-L-
    005 and 2017-L-006, 2019-Ohio-22, ¶ 48, citing State v. Torres, 
    66 Ohio St. 2d 340
    ,
    343, 
    421 N.E.2d 1288
    (1981). In the present matter, however, since Peric did not seek
    severance or otherwise object to the joinder of the offenses, the applicable standard of
    review is plain error. State v. Gordon, 
    152 Ohio St. 3d 528
    , 2018-Ohio-259, 
    98 N.E.3d 251
    , ¶ 22. “To successfully assert that a trial court committed plain error, a defendant
    must show an error that constitutes an obvious defect in the trial proceedings and
    demonstrate that the error affected the outcome of the trial.” 
    Id. at ¶
    23.
    10
    {¶37} “When a defendant claims that he was prejudiced by the joinder of
    multiple offenses, a court must determine (1) whether evidence of the other crimes
    would be admissible even if the counts were severed, and (2) if not, whether the
    evidence of each crime is simple and distinct.” State v. Patterson, 11th Dist. Trumbull
    No. 2013-T-0062, 2015-Ohio-4423, ¶ 60, citing State v. Schaim, 
    65 Ohio St. 3d 51
    , 59,
    
    600 N.E.2d 661
    (1992).      In the present matter, the evidence would have been
    admissible as “other acts” evidence under Evid.R. 404(B) and was also simple and
    distinct. Thus, under either ground, no prejudice was demonstrated.
    {¶38} Pursuant to Evid.R. 404(B), “[e]vidence of other crimes, wrongs, or acts is
    not admissible to prove the character of a person in order to show action in conformity
    therewith. It may, however, be admissible for other purposes, such as proof of motive,
    opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
    accident.”
    {¶39} Here, the other acts would have been admissible to show intent and
    absence of mistake. Peric presented testimony of the Clerk of Courts to show that he
    was mistaken about the time he was permitted to call to speak with his daughters,
    justifying the phone calls made on the evening of July 3, 2017. However, the FaceTime
    call made during the afternoon hours of August 9 would demonstrate that he called at
    times other than those permitted by the court, leading to questions about the
    genuineness of his mistake defense. Further, Peric’s claim that he had no intent to
    contact Joy for anything other than discussing the children was rebutted by evidence in
    other cases, as some included statements threatening to sue Joy and using expletives
    to insult her. On these grounds, the evidence of other acts would be permissible under
    11
    Evid.R. 404(B).
    {¶40} Moreover, even if the evidence had not been otherwise admissible, a
    finding that the evidence in the present matter was simple and distinct is proper under
    these circumstances. Each of the incidents was described by the date on which it
    occurred, with a separate officer discussing the events of each incident. Importantly, it
    is evident that the jury was able to separate the three incidents and factual scenarios
    giving rise to the individual crimes, as Peric was acquitted of one of the three charges.
    “[A] defendant does not establish prejudice resulting from the joinder of criminal charges
    where the evidence presented by the state is direct and uncomplicated and the jury
    demonstrates its ability to segregate the proof on each charge.” State v. Jackson, 11th
    Dist. Lake No. 2017-L-140, 2018-Ohio-3241, ¶ 27, citing State v. Smith, 11th Dist.
    Trumbull No. 91-T-4610, 
    1993 WL 407301
    , *8 (Sept. 30, 1993) (“[t]he jury * * *
    demonstrated their ability to carefully sort out the evidence relating to these three
    separate robberies and determine the defendant’s guilt or innocence as to each
    separately”); State v. Brooks, 
    44 Ohio St. 3d 185
    , 195, 
    542 N.E.2d 636
    (1989).
    {¶41} The second assignment of error is without merit.
    {¶42} In his third assignment of error, Peric argues that trial counsel was
    ineffective for failing to move to sever the charges for trial.
    {¶43} To demonstrate ineffective assistance of counsel, a defendant must prove
    “(1) that counsel’s performance fell below an objective standard of reasonableness, and
    (2) that counsel’s deficient performance prejudiced the defendant resulting in an
    unreliable or fundamentally unfair outcome of the proceeding.” State v. Madrigal, 
    87 Ohio St. 3d 378
    , 388-389, 
    721 N.E.2d 52
    (2000), citing Strickland v. Washington, 466
    
    12 U.S. 668
    , 687-688, 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984).
    {¶44} We do not find that trial counsel was ineffective by failing to file a motion to
    sever the offenses. As explained in the preceding assignment of error, such a motion
    would have been unsuccessful on multiple grounds and the failure to sever the offenses
    caused no prejudice to Peric.
    {¶45} The third assignment of error is without merit.
    {¶46} We will consider Peric’s fourth and fifth assignments of error, which relate
    to the weight and sufficiency of the evidence, jointly.
    {¶47} Crim.R. 29(A) provides, in pertinent part: “[t]he court * * * shall order the
    entry of a judgment of acquittal of one or more offenses charged * * * if the evidence is
    insufficient to sustain a conviction of such offense or offenses.”             In reviewing
    the sufficiency of the evidence, “[t]he 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.
    Jenks, 
    61 Ohio St. 3d 259
    , 
    574 N.E.2d 492
    (1991), paragraph two of the syllabus,
    following Jackson v. Virginia, 
    443 U.S. 307
    , 
    99 S. Ct. 2781
    , 
    61 L. Ed. 2d 560
    (1979).
    {¶48} Whereas “sufficiency of the evidence is a test of adequacy as to whether
    the evidence is legally sufficient to support a verdict as a matter of law, * * * weight of
    the evidence 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 State v. Thompkins, 
    78 Ohio St. 3d 380
    , 386-387, 
    678 N.E.2d 541
    (1997). “[A] reviewing court asks whose
    evidence is more persuasive—the state’s or the defendant’s?” 
    Id. An appellate
    court
    must consider all the evidence in the record, the reasonable inferences, the credibility of
    13
    the witnesses, and 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.” (Citation omitted.) Thompkins at 387. “Since there
    must be sufficient evidence to take a case to the jury, it follows that ‘a finding that a
    conviction is supported by the weight of the evidence necessarily must include a finding
    of sufficiency.’” (Citation omitted.) State v. Arcaro, 11th Dist. Ashtabula No. 2012-A-
    0028, 2013-Ohio-1842, ¶ 32.
    {¶49} To convict Peric of Violating a Protection Order, the State had to prove,
    beyond a reasonable doubt, that he did “recklessly violate the terms of         * * * [a]
    protection order issued or consent agreement approved pursuant to section
    2919.26 or 3113.31 of the Revised Code.” R.C. 2919.27(A)(1). Based on a review of
    the entire record, we find that the convictions were supported by the weight of the
    evidence and, thus, there was also sufficient evidence to submit the charges to the jury.
    {¶50} As to Case No. 17CRB02912, which relates to the offense committed from
    July 3, 2017 to August 6, 2017, the evidence presented showed that Peric called Joy in
    July and left at least 30 voicemail messages from a period of time ranging from
    sometime after 8:45 p.m. to at least 9:30 p.m. Pursuant to the terms of the protection
    order, Peric was not to initiate communication with Joy, with the exception of sending
    messages through the Our Family Wizard app. There is no question that the evidence
    demonstrates Peric called Joy’s phone, as supported by her cell phone logs, testimony,
    and the voicemail messages.
    {¶51} Peric contends that he was not reckless in making these phone calls
    because he believed he was calling during a period of time where such contact was
    14
    permissible.    “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.”
    R.C. 2901.22(C). While Peric was permitted to call Joy’s phone from 8:30 to 9:00 p.m.
    to speak with the children pursuant to the court’s phone visitation order, Peric’s calls to
    Joy’s phone took place for a period of time running until at least 9:30 p.m. Peric argued
    at trial that he believed the order was from 8:30 to 9:30 p.m. since the public docket
    mistakenly stated this, as was conceded by the Clerk of Courts.
    {¶52} The weight of the evidence supported the jury’s decision to reject this
    explanation and find Peric acted recklessly. The evidence and testimony demonstrated
    that a copy of the court order permitting contact from only 8:30 to 9:00 p.m. was sent to
    Peric and he had been present in court when the terms of this order were discussed,
    making it unlikely that he would have needed to reference the public docket to
    determine the time. Perhaps more significantly, in the voicemails presented at trial,
    Peric states that he is to get a “half hour” of parenting time. As the order does not
    mandate the length of the calls, this provides much weight to the inference that he was
    referencing the half hour period from 8:30 to 9:00 p.m. As such, the jury could find he
    was aware he could not call after that time. Further, although the call logs do not
    confirm it, Joy testified that Peric had called after 9:30 p.m., until 9:34 p.m. Although
    Peric raises issues with Joy’s credibility throughout her testimony, the jury was entitled
    to determine whether this was credible. The issue of credibility of witnesses is for the
    trier of fact to determine and “an appellate court may not substitute its own judgment.”
    State v. Starkey, 11th Dist. Ashtabula No. 2017-A-0022, 2017-Ohio-9327, ¶ 52,
    15
    citing State v. Awan, 
    22 Ohio St. 3d 120
    , 123, 
    489 N.E.2d 277
    (1986). Further, her
    testimony was generally consistent with the evidence presented at trial.
    {¶53} Although not discussed by the parties, we also note that leaving
    voicemails is specifically prohibited by the protection order. While Peric is permitted to
    call Joy’s cell phone during the designated time period as is necessary to talk to his
    children (who do not have their own phones), this does not extend to leaving voicemail
    messages for Joy.
    {¶54} We also note that an additional message, which references his parenting
    time with the children but also called Joy an “evil hateful bitch” was sent through Our
    Family Wizard on August 6, 2017, pursuant to the testimony and records presented at
    trial. Although Peric does not address this, it would also appear to be in violation of the
    protection order, which permitted communications only about the children and would not
    extend to personal attacks.     Thus, there were multiple grounds to find a violation
    occurred for this offense.
    {¶55} While Peric takes issue with the quality of the police officers’ investigation,
    as this court has previously held, the police are not required to collect all possible
    evidence for a conviction to be supported by the evidence and “we will not speculate on
    what further police investigation may or may not have discovered” when there is
    sufficient, credible evidence. (Citation omitted.) State v. Griggs, 11th Dist. Lake No.
    2014-L-127, 2015-Ohio-4635, ¶ 58.
    {¶56} Regarding Case No. 17CRB04141, for the November 8, 2017 offense,
    Peric contends that the message sent in Our Family Wizard discusses Joy taking his
    children from him and, thus was permissible under the protection order since the parties
    16
    were permitted to communicate through that app “for all issues concerning minor
    children.”
    {¶57} The protection order prevents any contact between the parties.             As
    amended, it orders that the parties “shall communicate exclusively through Our Family
    Wizard for all issues concerning minor children.” While this allows for facilitation of
    communication to address the children’s needs, it is evident that this statement’s intent
    is not to allow Peric to send messages threatening lawsuits and prison time based on a
    perceived underlying conflict over the children. This is an unreasonable interpretation of
    the order. Under this interpretation, Peric would have license to say anything to Joy
    provided he mentioned the children in the message.
    {¶58} To the extent that Peric argues it was not proven he was the one who sent
    the message, it is reasonable to infer that he sent the communication under the
    circumstances. As Joy explained, both she and Peric had their own accounts with
    specific login information and passwords, the message came from his account, and
    Peric had used the app to communicate with her in the past.           The message also
    referred to specific issues dealing with their interactions and children, giving further
    support to a conclusion that he sent it.         State v. McCaleb, 2d Dist. Greene No.
    05CA155, 2006-Ohio-4652, ¶ 16-19 (the presumption that contact came from the owner
    of the cell phone when considered in light of additional facts demonstrating the sender
    of the text message supported the conviction for violating a protection order).
    {¶59} As to both offenses, the foregoing evidence satisfies the elements of R.C.
    2919.27(A)(1), constituting reckless violations of the protection order.          Since all
    elements were proven beyond a reasonable doubt and the convictions are not against
    17
    the weight of the evidence, we find that they are also supported by sufficient evidence.
    {¶60} The fourth and fifth assignments of error are without merit.
    {¶61} For the foregoing reasons, the judgment denying the Motion for
    Competency Evaluation and Peric’s convictions for Violating a Protection Order in the
    Willoughby Municipal Court are affirmed. Costs to be taxed against appellant.
    TIMOTHY P. CANNON, J.,
    MARY JANE TRAPP, J.,
    concur.
    18
    

Document Info

Docket Number: 2018-L-089 2018-L-090

Citation Numbers: 2019 Ohio 1164

Judges: Lynch

Filed Date: 3/29/2019

Precedential Status: Precedential

Modified Date: 4/17/2021