State v. Bellomy
2013 Ohio 3187
Ohio Ct. App.2013Background
- Bellomy and M.T. dated off and on for about ten months; protection orders issued in 2010 and 2011 restricting contact.
- M.T. obtained a five-year civil stalking protection order in late 2011 prohibiting Bellomy from contacting her or her children.
- On Jan. 5, 2012 Bellomy allegedly called M.T. on her cell; he claims it was an accidental dial; call lasted three seconds.
- Bellomy was convicted by a jury of violating the civil protection order and had one prior conviction for violation of a protection order.
- Bellomy was sentenced to 30 days in jail, 120 days of home incarceration, five years of probation, and no contact with M.T. or her family.
- Bellomy filed a delayed appeal raising four assignments of error; the court rearranged them for analysis and ultimately affirmed the conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mistake of fact instruction requested | Bellomy sought a mistake of fact instruction. | Bellomy complied with Rule 30; written instruction required. | Assignment overruled; record insufficient to judge instruction. |
| Sufficiency of the evidence (Crim.R. 29) | State failed to prove recklessness beyond a reasonable doubt. | Evidence insufficient to show recklessness. | Sufficient evidence supported recklessness and violation of the protection order. |
| Credit for time served | Credit should be given for 17 days already served. | Time served credited per journal entry; moot after affirmance. | Moot; journal entry dictates credit; no remedy after conviction affirmed. |
| Negligence definition requested by jury | Jury requested negligence definition. | Mental state of negligence not applicable; reckless standard governs. | Plain-error review not invoked; issue forfeited or not shown as plain error. |
Key Cases Cited
- State v. Yates, 9th Dist. Summit No. 21239, 2003-Ohio-2956 (Ohio (2003)) (special jury instruction timing requirement)
- State v. Franklin, 62 Ohio St.3d 118, 128 (1991) (Ohio Supreme Court (1991)) (standard for jury instructions; objection timing)
- State v. Palmison, 9th Dist. Summit No. 20854, 2002-Ohio-2900 (Ohio (2002)) (record on proposed instruction)
- State v. Hoang, 2012-Ohio-3741 (9th Dist. Medina No. 11CA0013-M) (plain error review limits)
- State v. Zepeda-Ramires, 2013-Ohio-1224 (9th Dist. Lorain No. 12CA010275) (plain-error/forfeiture limitations)