2018 Ohio 5121
Ohio Ct. App.2018Background
- Lance A. Smith (defendant) continued posting on the Kent State University (Tuscarawas) library Facebook and Yelp pages after a breakup with Jane Doe and after a civil protection order (CPO) was issued on Oct. 25, 2016 and served Nov. 16, 2016.
- Smith was charged in Muskingum County with 7 counts of violating the CPO, 7 counts of telecommunications harassment, and 2 counts of menacing by stalking (total 16 counts); several earlier related cases existed.
- One week before trial Smith’s retained counsel withdrew; Smith waived jury trial and proceeded pro se after a brief hearing; the trial court accepted the waiver without a comprehensive Crim.R. 44 inquiry.
- After a bench trial the court acquitted on counts 6, 7, 13, 14, and convicted on the remaining counts; sentence: 30 days jail.
- On appeal the court (Fifth Dist.) affirmed some convictions, reversed others for insufficient evidence, and remanded because the trial court failed to adequately ensure Smith’s waiver of counsel was knowing, intelligent, and voluntary.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Smith) | Held |
|---|---|---|---|
| Territorial jurisdiction / venue for on-line conduct | Muskingum Ct. had territorial subject-matter jurisdiction under R.C. 2901.12 because victim lived in Muskingum and online posts targeted the victim/place of employment there | Posts originated from Franklin County; Muskingum lacked subject-matter jurisdiction | Court: Jurisdiction proper under territorial-connection and multi-jurisdiction course-of-conduct rules (overrule) |
| Waiver of counsel / self-representation | Smith knowingly waived counsel and proceeded pro se (trial court accepted waiver) | Waiver was not knowing, intelligent, voluntary; Crim.R. 44 and Gibson inquiry required more; needed full admonition | Court: Remanded — trial court failed to conduct adequate Gibson/Crim.R. 44 inquiry (sustained) |
| Sufficiency of evidence for specific counts (service of CPO; menacing by stalking; telecomm. harassment) | State: evidence showed Smith was served with CPO; postings and other acts supported menacing and harassment counts | Smith: not served; posts did not meet elements of harassment or stalking for many counts | Court: Sufficient evidence of service and for counts 1,2,4,5,12,15,16 (menacing by stalking sustained); insufficient evidence for counts 3,8,9,10,11; convictions on 6,7,13,14 already acquitted at trial |
| Constitutional challenge to R.C. 2917.21 and R.C. 2903.211; allied-offenses merger | State: statutes valid and applicable | Smith: statutes unconstitutionally restrict First Amendment; allied offenses should merge | Court: Held constitutional/merger issues premature given remand and unresolved proceedings (declined to decide) |
Key Cases Cited
- State ex rel. Jones v. Suster, 84 Ohio St.3d 70 (1998) (lack of jurisdiction can be raised at any time)
- Cheap Escape Co., Inc. v. Haddox, 120 Ohio St.3d 493 (2008) (municipal courts have territorial subject-matter jurisdiction where a territorial connection exists)
- State v. Jenks, 61 Ohio St.3d 259 (1991) (standard for sufficiency review – Jackson/Jenks rule)
- State v. Gibson, 45 Ohio St.2d 366 (1976) (trial court must conduct a comprehensive inquiry to ensure waiver of counsel is knowing and intelligent)
- Faretta v. California, 422 U.S. 806 (1975) (defendant has right to self-representation)
- Iowa v. Tovar, 541 U.S. 77 (2004) (waiver of counsel must be knowing, intelligent, and voluntary)
- Carnley v. Cochran, 369 U.S. 506 (1962) (presuming waiver from a silent record impermissible)