VILLAGE OF CHAGRIN FALLS v. JUSTIN PTAK
No. 109342
Court of Appeals of Ohio, Eighth Appellate District, County of Cuyahoga
December 10, 2020
2020-Ohio-5623
MARY J. BOYLE, P.J.
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
VILLAGE OF CHAGRIN FALLS, :
Plaintiff-Appellee, :
v. : No. 109342
JUSTIN PTAK, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: December 10, 2020
Criminal Appeal from the Bedford Municipal Court
Case No. 18CRB01644
Appearances:
Diemert & Associates Co., L.P.A., Thomas M. Hanculak, Village of Chagrin Falls Prosecutor; and Lauryn G. Kitchen, for appellee.
Patituce & Associates, L.L.C., Joseph C. Patituce, and Megan M. Patituce, for appellant.
MARY J. BOYLE, P.J.:
{¶ 1} Defendant-appellant, Justin Ptak, appeals his conviction of menacing by stalking. He raises five assignments of error for our review:
2. The trial court erred by allowing the admission of cell phone records without proper authentication resulting in appellant being denied his right to a fair trial as required by our state and federal constitutiоns.
3. The trial court erred by allowing admission of hearsay testimony regarding to whom a license plate was registered or the failure to object constituted ineffective assistance of counsel.
4. The prosecutor’s comments in closing argument constitu[t]e prosecutorial misconduct and deprived appellant of the right to a fair trial under our state and federal constitution.
5. Appellant’s conviction for menacing by stalking was against the manifest weight of the evidence in violation of our state and federal constitutions.
{¶ 2} Finding no merit to his assignments of error, we affirm.
I. Procedural History and Factual Background
{¶ 3} In August 2018, Ptak was charged with telecommunications harassment in violation of
{¶ 4} Ptak went to high school with the victim, C.W., and the two dated in 2016. C.W. testified that she and Ptak dated for five months when she was seventeen years old and in the eleventh grade. In the early spring of 2016, C.W. ended the relationship because it was “overwhelming” and “emotionally demanding,” she did things she “wasn’t comfortable” doing, and Ptak would “excessively” call and text
{¶ 5} In 2017, C.W. moved from Ohio to Minnesota. C.W. unblocked Ptak’s phone number and had one “very simple back-and-forth text conversation” about a mutual friend. But when C.W. realized that Ptak interpreted the conversation as her romantically “advancing” on him, she blocked his phone number again. C.W. testified that Ptak repeated a pattern of texting her from phone numbers she did not recognize “a bunch of times” within a few days and then “stop[ping] for a little bit.” She said that after she went to the police in 2016, Ptak stopped using his name in the text messages. She explained that she knew the texts were from Ptak because of the content of the messages and that the messages referred to her by names that only Ptak called her. C.W. was dating somebody else, and she asked her boyfriend to tell Ptak to stop contacting her. She made the same request of the housing manager where she was living She testified that the texts temporarily stopped after her boyfriend and housing manager reached out to Ptak, but then the messages
C.W. testified that in March 2018, she received a text message that said, “I miss you,” and, “I still have the pictures you gave me.” C.W. thought the reference was to nude photos, became “very upset,” unblocked Ptak’s phone number, texted him to try to get the photos back, and called him to warn him that she would call the police if he did not return the photos. She said that Ptak responded by sending her “the picture that he was talking about” and claiming that he did not have any nude photos.
In May 2018, C.W.’s mother got a puppy, and C.W. posted a picture of the puppy on social media. C.W. had blocked Ptak from her social media accounts, but after she posted the puppy photo, C.W. received a text message from a number she did not recognize that said it would “be a shame if something happened” to the puppy. C.W. testified that she “kn[e]w” the text came from Ptak but that she did not have “hard evidence.” C.W. was “really concerned” about the text message, and her mother was “very, very scared.” Her mother contacted the Geauga County Sheriff’s Office, which instructed C.W. how to send a cease-and-desist letter to Ptak via certified mail. C.W. sent Ptak the letter on May 11, 2017, instructing him not to contact her anymore and advising him that she would report any further communication attempts to the police. C.W. received a receipt reflecting
On August 27, 2018, C.W. found a letter and roses on her car parked in a lot across from her apartment building. The letter was signed by “Justin.” In the letter, Ptak expressed his love for C.W., said he felt “awful” about the “terrible things” he said to her, and asked her to not “give up” on him. C.W., her boyfriend, and her father went to the Chagrin Falls Police Department that day to “get [Ptak] to stop.” Sergeant Jason Fischer, a Chagrin Falls police officer, testified that he initiated а written and video-recorded report with her. C.W. told Sergeant Fischer that she did not think that Ptak would cause her physical harm but that she was “freaked out” by his behavior. She testified that it was not “productive for [her] to live [her] life catastrophizing” that he would kill her or beat her up, but that it was “frightening” that he figured out where she lived. She explained that she never told Ptak where she lived, and they no longer had friends in common who could have told him. She testified that she wrote in her statement that she was “scared.” C.W. switched cars with her mother for a few weeks, hoping that Ptak would not recognize the car, not “mess with” her car, and not know where she was.
On the afternoon of August 28, 2018, Sergeant Fischer reached Ptak by telephone and told him “that he was absolutely not in any way, shаpe, or form to
{¶ 10} Detective Andrew Capwill, a detective sergeant for the Chagrin Falls Police Department, subpoenaed the phone records from January 1, 2018, through September 11, 2018, for C.W.’s cell phone from Verizon and Ptak’s cell phone from AT&T. Detective Capwill explained that the records show that Ptak called C.W. 55 times in 2018: 1 call in February, 6 in March, 14 in June, 16 in July, and 18 in August. C.W. called Ptak once on March 2, 2018, which C.W. testified was the inсident regarding the photos. On August 27, 2019, the day that C.W. found the love letter and roses on her car, Ptak called C.W. twice. He called her again at 11:06 a.m. on August 28, at 2:39 a.m. on August 29 (after Sergeant Fischer instructed him to stop contacting C.W.), and at 8:05 p.m. on August 29 (after he had been charged).
{¶ 11} In September 2018, the trial court issued a no-contact order against Ptak.
{¶ 12} In February 2019, as this case was proceeding, C.W. noticed a car following her while she was driving. The car followed her to her apartment complex and parked when she parked. She went inside the leasing office to deposit her rent, and the driver was still in the car that had been following her when she returned to her car. The other car followed her out of the parking lot. She pulled over to the side
{¶ 13} At the end of the state’s case, Ptak moved for a
{¶ 14} After deliberations, the jury found Ptak guilty of menacing by stalking but not guilty of telecommunications harassment. The trial court referred Ptak for a presentence investigation report.
{¶ 15} At the sentencing hearing in November 2019, the trial court sentenced Ptak to 180 days in jail, suspended 160 of them on the condition of five years of community control sanctions, imposed a $500 fine, and assessed court costs
Ptak timely appeals from the sentencing judgment. We will address his assignments of error out of order for ease of discussion.
II. Admission of Cell Phone Records
{¶ 17} In his second assignment of error, Ptak argues that he was denied his right to a fair trial because the trial court improperly admitted cell phone records without sufficient authentication. Ptak contends that (1) the records are not business records pursuant to
{¶ 18} We review a trial court’s decision to admit evidence for abuse of discretion. O’Toole v. Hamman, 8th Dist. Cuyahoga No. 109193, 2020-Ohio-4753, ¶ 28. An abuse of discretion occurs when the trial court’s attitude is unreasonable, arbitrary, or unconscionable. Marketing Assocs. v. Gottlieb, 8th Dist. Cuyahoga No. 92292, 2010-Ohio-59, ¶ 47.
{¶ 19}
{¶ 20} We find that the trial court did not abuse its discretion in admitting the AT&T records regarding Ptak’s cell phone. In State v. Richardson, 2016-Ohio-8081, 75 N.E.3d 831 (2d Dist.), the Second District held that the trial court did not abuse its discretion when it admitted bank records in part because the state presented sufficient evidence to authenticate the records. A Department of Agriculture agent testified that he had requested the bank records pursuant to a subpoena. Id. at ¶ 41. Attached to the records that the agent received was a letter from one of the bank’s document review specialists that certified that the records were true and correct copies of the originals. Id. at ¶ 40-41. The Second District found that the subpoena issued by the agent in his official capacity and the certified lеtter “provide the bank records with sufficient indicia of reliability that the documents are in fact what they purport to be.” Id. at ¶ 45.
{¶ 21} Likewise, here, Detective Capwill testified that he obtained the records of Ptak’s cell phone through a court-ordered subpoena to AT&T, and that the records were accompanied by a certification of authenticity from an AT&T custodian.1 The certification itself was admitted into evidence and titled, “Certificate
Accordingly, we overrule Ptak’s second assignment of error.
III. Ineffective Assistance of Counsel
{¶ 23} In his third assignment of error, Ptak argues that his counsel was ineffective for failing to object to hearsay testimony from C.W. and Sergeant Fischer that the car following C.W. in February 2019 was registered to Ptak’s mother.
{¶ 24} The defendant carries the burden of establishing a claim of ineffective assistance of counsel on appeal. State v. Corrothers, 8th Dist. Cuyahoga No. 72064, 1998 Ohio App. LEXIS 491, 19 (Feb. 12, 1998). To gain reversal on a claim of ineffective assistance of counsel, a defendant must show that (1) his or her “counsel’s performance was deficient,” and (2) “the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The first prong of the Strickland test requires the defendant to show “that counsel’s representation fell below an objective standard of reasonableness.” Id. at 688. Strickland’s second prong requires the defendant to show “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
{¶ 26} The Eighth District has consistently found that LEADS reports are admissible under the public records exception to the hearsay rule,
{¶ 27} Here, Chagrin Falls submitted into evidence the LEADS report identifying Kathleen Ptak as the owner of the car that followed C.W. in February 2019. Sergeant Fischer identified the LEADS report, testified that he entered the license plate through the LEADS system, and the LEADS report identified the owner of the vehicle as Kathleen Ptak. The LEADS report is therefore admissible under the public records exception to the hearsay rule, and Sergeant Fischer’s testimony is sufficient to establish the report’s authenticity. Therefore, the evidence that
Ptak relies on State v. Garrett, 8th Dist. Cuyahoga Nos. 87112 and 87123, 2006-Ohio-6020, in which this court found that a police officer’s testimony based on his recollection of a mobile data computer was inadmissible hearsay. In Garrett, the computer data information itself was not introduced into the record. Id. at ¶ 13. But here, the LEADS report was submitted as an exhibit. Even though C.W.’s testimony about what the police told her may have been hearsay, the evidence of the identity of the vehicle owner was properly admitted through the LEADS report and Sergeant Fischer’s testimony. Any deficiency in Ptak’s counsel’s failure to object to C.W.’s testimony would not have prejudiced Ptak’s defense. Accordingly, Ptak is unable to show that his counsel was ineffective.
We therefore overrule Ptak’s third assignment of error.
IV. Sufficiency of the Evidence
{¶ 30} In his first аssignment of error, Ptak argues that his conviction for menacing by stalking is not supported by sufficient evidence. Ptak contends that Chagrin Falls failed to present evidence that (1) he engaged in a pattern of conduct, (2) he knowingly caused C.W. to believe that he would cause her physical harm, and (3) that C.W. suffered mental distress. Ptak argues there is insufficient evidence of a pattern of conduct because Chagrin Falls did now show that he was the person who called and texted C.W. and followed her by car to her apartment and Panera Bread. He maintains that Chagrin Falls did not submit any text messages into evidence or
{¶ 32} Both direct and circumstantial evidence may support a conviction. Brook Park v. Gannon, 2019-Ohio-2224, 137 N.E.3d 701, ¶ 24 (8th Dist.). “Although there are obvious differences between direct and circumstantial evidence, those differences are irrelevant to the probative value of the evidence — circumstantial evidence carries the same weight as direct evidence.” State v. Cassano, 8th Dist. Cuyahoga No. 97228, 2012-Ohio-4047, ¶ 13. “Since
{¶ 33}
No person by engaging in a pattern of conduct shall knowingly cause another person to believe that the offender will cause physical harm to the other person or a family or household member of the other person or cause mental distress to the other person or a family or household member of the other person.
{¶ 34}
{¶ 35}
{¶ 36} After reviewing the record, we find there was sufficient evidence for the jury to find that Ptak knowingly engaged in a pattern of conduct that caused C.W. mental distress. Threats of physical harm are not necessary to sustain a conviction for menacing by stalking.
{¶ 37} There is sufficient evidence in the record to identify Ptak as the person who engaged in this pattern of conduct. Even though Chagrin Falls did not submit any text messages into evidence, C.W. testified that she knew the text messages were from Ptak because they referred to her by names that only Ptak called her. Ptak did not deny sending C.W. a text message about the pictures she gave him when she confronted him. The love letter left on C.W.’s car with the roses on August 27, 2018, was signed by Ptak, and the phone records show that Ptak’s cell phone called C.W.’s twice on that day. Furthermore, the LEADS report shows that the car that was following C.W. in February 2019 belonged to Ptak’s mother, and C.W. testified that the driver of the car was male. Ptak is correct that Chagrin Falls did not present direct evidence that he was the person sending the text messages, that he was the one using his cell phone to call C.W., or that he was the male driving the car. But viewing the circumstantial evidence in the light most favorable to Chagrin Falls, any rational jury could have found beyond a reasonable doubt that Ptak was the one who engaged in this pattern of conduct.
{¶ 38} As to mental distress, there is conflict among the Ohio Appellate Districts regarding whether
Chagrin Falls presented sufficient evidence that Ptak knew that he was causing C.W. to believe that she would suffer mental distress. In 2017, both C.W.’s boyfriend and her housing manager contacted Ptak to tell him to stop calling and sending C.W. text messages. In March 2018, C.W. called and texted Ptak very upset in response to his message about “the pictures.” In May 2018, C.W. sent Ptak a letter via certified mail warning him that she would contact the police if he were to
{¶ 40} The evidence that C.W. went to the police four times also shows that Ptak actually caused C.W. mental distress. Calliens, 8th Dist. Cuyahoga No. 109005, 2020-Ohio-4064, at ¶ 48 (“[T]he fact that [the victim] was involving the police in the first-place evidences mental distress.”). Chagrin Falls also demonstrated mental distress with evidence that C.W. changed her routine by switching cars with her mother for a few weeks so that Ptak could not follow her. See R.S. v. J.W., 9th Dist. Summit No. 28970, 2018-Ohio-5316, ¶ 25 (finding sufficient evidence of mental distress where the victim started using a different vehicle, changed her route to work, parked in a garage so her vehicle was out of sight, and refrained from placing window decals on the vehicle that would make it recognizable as hers); State v. Williams, 8th Dist. Cuyahoga No. 107133, 2019-Ohio-2323, ¶ 24 (mail carrier’s act of working her route out of order to prevent her former boyfriend from following her was evidence of mental distress). Ptak points out that C.W. told Sergeant Fischer that she did not think Ptak would physically harm her, but C.W. also told Sergeant Fischer that Ptak’s conduct “freaked [her] out.” C.W. testified that it was
{¶ 41} Ptak cites State v. Beckwith, 8th Dist. Cuyahoga No. 98497, 2013-Ohio-492, to argue that evidence that someone is uncomfortable or “creeped out” is insufficient to establish mental distress. He also relies on Cleveland Hts. v. Lewis, 8th Dist. Cuyahoga No. 79511, 2002-Ohio-2736, for the proposition that evidence that someone is upset, worried, or fearful about “not being able to go where she wants” is insufficient to show mental distress. In Beckwith, this court found there was insufficient evidence of mental distress where a library employee was uncomfortable and “creeped out” because the defendant followed her around the library and to a hotel entrance where she noticed he had his cell phone pointed at her behind, but he did not call her, and he spoke to her only twice to help him find a book and download a song. Id. at ¶ 17. In Lewis, this court found insufficient evidence of mental distress where the defendant excessively called his ex-wife one night, and the ex-wife testified that she was worried for her teenage children who were staying with the defendant and wаs concerned that her children would not be able to go “where they needed to go.” Id. at ¶ 17-24.
{¶ 42} However, after reviewing the evidence presented, Ptak’s conduct and C.W.’s distress in this case is more extreme than the facts in Beckwith and Lewis. The evidence in this case is more akin to J.W. v. D.W., 10th Dist. Franklin No. 19AP-52, 2019-Ohio-4018. In J.W., the Tenth District found sufficient evidence to support
Viewing the evidence in the light most favorable to Chagrin Falls, we find that Chagrin Falls presented sufficient evidence to support a conviction for menacing by stalking. Accordingly, we overrule Ptak’s first assignment of error.
V. Manifest Weight of the Evidence
{¶ 44} In his fifth assignment of error, Ptak argues that his conviction for menacing by stalking was against the manifest weight of the evidence. He again contends that he never threatened C.W., C.W. never felt physically threatened or suffered physical harm, and any inconvenience C.W. felt did not rise to the level of mental distress. He further maintains that C.W. moved on with her life by attending
{¶ 45} Unlike sufficiency of the evidence, a challenge to the manifest weight of the evidence attacks the credibility of the evidence presented. Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541. Because it is a broader review, a reviewing court may determine that a judgment of a trial court is sustained by sufficient evidence, but nevertheless conclude that the judgment is against the weight of the evidence. Id.
{¶ 46} In determining whether a conviction is against the manifest weight of the evidence, the court of appeals functions as a “thirteenth juror.” Id. In doing so, it must 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.’” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). Reversing a conviction as being against the manifest weight of the evidence and ordering a new trial should be reserved for only the “‘exceptional case in which the evidence weighs heavily against the conviction.’” Id., quoting Martin.
{¶ 47} We agree with Ptak that there is no evidence that he physically harmеd or threatened C.W., but to establish menacing by stalking, physical harm is not necessary if the defendant’s pattern of conduct knowingly caused someone to
{¶ 48} Despite Ptak’s contention that there is not credible evidence that he texted C.W., C.W. herself testified that she received an excessive amount of text messages. We find C.W.’s testimony to be credible. She explained that she knew the texts were from Ptak because they referred to her by names that only Ptak called her, they referred to photos that she had sent Ptak, they contained messages about wanting to be with her, they temporarily stopped when Ptak was told to stop contacting her, and she did not know anyоne else who could have been sending them. We agree with Ptak that his 55 phone calls to C.W. could not have contributed to C.W.’s mental distress if she had blocked his phone number and was not receiving the calls. However, there is no evidence that Ptak knew his calls were not going
{¶ 49} After reviewing the entire record and weighing the evidence and all reasonable inferences, we find that the jury did not clearly lose its way and create such a manifest miscarriage of justice that Ptak’s menacing by stalking conviction must be reversed and a new trial ordered. This is simply not the exceptional case where thе evidence weighs heavily against the conviction.
{¶ 50} Accordingly, we overrule Ptak’s fifth assignment of error.
VI. Prosecutorial Misconduct
{¶ 51} In his fourth assignment of error, Ptak argues that Chagrin Falls’ counsel committed prosecutorial misconduct by engaging in “inappropriate, irrelevant, and immaterial comments” in his closing argument. Specifically, Ptak points to comments when Chagrin Falls’ counsel (1) called C.W.’s testimony “overly honest,” (2) referred to what Ptak’s conduct “did to” C.W., (3) claimed that the Chagrin Falls Police Department “protect[ed] and serve[d],” (4) shifted the burden of proof to Ptak by arguing that Ptak did not present any evidence, (5) impermissibly commented that he had been waking up at 4:00 a.m. to prepare for trial, and (6) asked the jury to give C.W. her life back by comparing her to a victim of child аbuse or murder.
{¶ 52} Our review of the record shows Ptak failed to object to all but one of the prosecutor’s comments, and thus, he waived all but plain error as to those comments. State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263,
The test to determine if there was prosecutorial misconduct during closing arguments is whether the remarks were improper and if so, whether they prejudicially affected the defendant’s substantial rights. State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984). We must review the entire record to determine whether the disputed remarks were unfairly prejudicial. State v. Moritz, 63 Ohio St.2d 150, 157, 407 N.E.2d 1268 (1980). The touchstone of our analysis “is the fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). Furthermore, an appellant must show that there is a reasonable probability that, but for the prosecutor’s misconduct, the result of the proceeding would have been different. State v. Loza, 71 Ohio St.3d 61, 78-79, 641 N.E.2d 1082 (1994).
Although the prosecution is entitled to considerable latitude in opening and closing arguments, it must nevertheless avoid assertions that are calculated to mislead a jury. Smith at 14. It is improper for the prosecution to express its personal belief or opinion as to the guilt or credibility of a witness. Id. However, the prosecution is permitted to fairly comment on the credibility of
Further, a prosecutor may not invade the realm of a jury by alluding to matters outside of the record. State v. Baker, 159 Ohio App.3d 462, 2005-Ohio-45, 824 N.E.2d 162, ¶ 19 (2d Dist.). However, “[i]solated comments by a prosecutor are not to be taken out of context and be given their most damaging meaning,” and we must review the challenged statements within the context of the entire trial. State v. Hill, 75 Ohio St.3d 195, 204, 661 N.E.2d 1068 (1996).
Although some of the prosecutor’s comments were improper, after reviewing the comments within the context of the entire trial, we cannot say that they prejudicially affected Ptak’s substantial rights. The prosecutor was permitted to comment on C.W.’s credibility based on her trial testimony, and the prosecutor’s comment about C.W. being “overly honest” (immediately followed by a comment that she answered “even the most uncomfortable of questions”) was likely referring to C.W.’s willingness to answer questions about her dating history on cross-examination. Likewise, the prosecutor’s comment about what Ptak’s conduct “did
We therefore overrule Ptak’s fourth assignment of error.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
MARY J. BOYLE, PRESIDING JUDGE
ANITA LASTER MAYS, J., and
KATHLEEN ANN KEOUGH, J., CONCUR