CITY OF DELAWARE v. SEAN T. BOGGS
Case No. 18 CAC 03 0027
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
November 19, 2018
2018-Ohio-4677
Hon. William B. Hoffman, P.J.; Hon. Patricia A. Delaney, J.; Hon. Craig R. Baldwin, J.
Appeal from the Delaware Municipal Court, Case No. 17 CRB 02695; Judgment: AFFIRMED
For Plaintiff-Appellee: CHRISTOPHER E. BALLARD, ASSISTANT CITY PROSECUTOR, 70 North Union Street, Delaware, OH 43015
For Defendant-Appellant: ALEX J. POMERANTS, 1141 South High Street, Columbus, OH 43206
{¶1} Defendant-Appellant Sean T. Boggs appeals the February 27, 2018 judgment entry of the Delaware Municipal Court.
FACTS AND PROCEDURAL HISTORY
{¶2} On September 26, 2017 through September 27, 2017, Defendant-Appellant Sean T. Boggs sent a series of messages to his ex-paramour, E.M. through the Facebook Messenger application. Boggs’ messages to E.M. regarded Boggs’ desire to see the couple’s child. E.M. responded to the messages and explained she did not want Boggs to see their child. During the parties’ conversation through the Facebook Messenger application, E.M. told Boggs to stop messaging her. Boggs continued to send E.M. messages about his desire to see their child through Facebook Messenger after E.M. told him to stop. E.M. repeatedly told Boggs to stop messaging her and threatened to call the police. Boggs eventually ended the conversation.
{¶3} On September 29, 2017, Boggs was charged via complaint with one count of Telecommunications Harassment, a first-degree misdemeanor in violation of
{¶4} Boggs filed a motion to dismiss. In his motion to dismiss, he argued there was insufficient evidence and the statute was unconstitutionally vague. The trial court denied the motion.
{¶5} On February 27, 2018, Boggs entered a plea of no contest to the charge on stipulated facts:
On September 26, 2017 through September 27, 2017, in Delaware County, Ohio, Defendant Sean T. Boggs sent messages to [E.M.] via the Facebook
Messenger application. Attached to this motion are printouts of screen captures of the messages on [E.M.]’s smartphone, with pages numbered for clarity. As depicted in Exhibit 1, Boggs continued to send messages and emojis after [E.M.] messaged him to cease, including after she stopped responding to him on pg. 3. Boggs stated to a Delaware Police Officer on September 27, 2017, that he was aware that [E.M.] had told him to stop messaging her.
{¶6} On February 27, 2018, the trial court accepted the no contest plea and found Boggs guilty of violating
{¶7} It is from this judgment Boggs now appeals.
ASSIGNMENTS OF ERROR
{¶8} Boggs raises two Assignments of Error:
{¶9} “I. THE OHIO REVISED CODE AS WRITTEN,
{¶10} “II. THE OHIO REVISED CODE AS WRITTEN,
I. SUFFICIENCY OF THE EVIDENCE
{¶11} Boggs argues in his first Assignment of Error that his conviction was not supported by the sufficiency of the evidence. We disagree.
{¶12} Boggs was charged with one violation of
(A) No person shall knowingly make or cause to be made a telecommunication, or knowingly permit a telecommunication to be made from a telecommunications device under the person’s control, to another, if the caller does any of the following:
* * *
(5) Knowingly makes the telecommunication to the recipient of the telecommunication, to another person at the premises to which the telecommunication is made, or to those premises, and the recipient or another person at those premises previously has told the caller not to make a telecommunication to those premises or to any persons at those premises;
{¶13} Boggs argues his conduct did not rise to the level of criminal harassment and therefore the State failed to meet its burden of production under
{¶14} In this case, Boggs was not charged with a violation of
{¶15} Sufficiency of the evidence is a legal question dealing with whether the state met its burden of production at trial. State v. Murphy, 5th Dist. Stark No. 2015CA00024, 2015–Ohio–5108, ¶ 13, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). “Specifically, an appellate court’s function, when reviewing the sufficiency of the evidence to support a criminal conviction, is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt.” Murphy at ¶ 15. The test for sufficiency of the evidence raises a question of law and does not permit the court to weigh the evidence. State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶16} The 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. Murphy at ¶ 15, citing Thompkins at 386.
{¶18} Boggs did not provide a transcript of the February 27, 2018 proceeding before the trial court. Since Boggs has not provided a transcript, we must presume the regularity of the proceedings. Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 400 N.E.2d 384 (1980). Pursuant to
{¶19} The first Assignment of Error is overruled.
II. CONSTITUTIONALITY OF R.C. 2917.21(A)(5)
{¶20} Boggs argues in his second Assignment of Error that
(A) No person shall knowingly make or cause to be made a telecommunication, or knowingly permit a telecommunication to be made from a telecommunications device under the person’s control, to another, if the caller does any of the following:
(5) Knowingly makes the telecommunication to the recipient of the telecommunication, to another person at the premises to which the telecommunication is made, or to those premises, and the recipient or another person at those premises previously has told the caller not to make a telecommunication to those premises or to any persons at those premises;
Boggs contends
{¶21} Legislative enactments are afforded a strong presumption of constitutionality. State v. Collier (1991), 62 Ohio St.3d 267, 269, 581 N.E.2d 552. When possible, statutes are to be construed in favor of conformity with the Ohio and United States Constitutions. Id. A party asserting a statute is unconstitutional must prove the statute is unconstitutional beyond a reasonable doubt. Id.
{¶23}
{¶24} The language of
CONCLUSION
{¶26} The judgment of the Delaware Municipal Court is affirmed.
By: Delaney, J.,
Hoffman, P.J. and
Baldwin, J., concur.