State v. BrentleyState v. Brentley
Eric J. Allen for Appellant
Joseph C. Snyder for Appellee
ZIMMERMAN, J.
{¶1} Defendant-appellant, Justin L. Brentley (“Brentley“), appeals the October 11, 2022 judgment entries of sentence of the Lima Municipal Court. For the reasons that follow, we affirm.
{¶2} On March 10, 2022, Brentley was charged by complaint in case number 22CRB00350 for a single count of violating a protection order in violation of
{¶3} After a bench trial on September 6, 2022, the trial court found Brentley guilty of each count alleged in the complaints. On October 11, 2022, the trial court sentenced Brentley (in case number 22CRB00350) to one year of community-control sanctions, including 180 days in jail, with 150 days suspended conditioned on his compliance with his community-control sanctions. (Case No. 22CRB00350, Doc. No. 19). That same day, the trial court sentenced Brentley (in case number 22CRB00637) to two years of community-control sanctions, including 180 days in jail, which the trial court suspended conditioned on his compliance with his
{¶4} Brentley filed his notice of appeal on October 19, 2022 in case number 22CRB00350, and filed his notice of appeal on November 7, 2022 in case number 22CRB00637. This court consolidated the cases for purposes of appeal. Brentley raises three assignments of error for our review. For ease of our discussion, we will begin by discussing Brentley‘s third assignment of error, followed by his first and second assignments of error, which we will discuss together.
Third Assignment of Error
The Trial Court Erred In Admitting Exhibit C As It Lacked Foundation.
{¶5} In his third assignment of error, Brentley argues that the trial court erred by admitting State‘s Exhibit C because the State did not present a sufficient foundation to authenticate the exhibit. State‘s Exhibit C reflects a photograph depicting the victim that was posted in a comment on Change.org—“a free website where anyone can create and share petitions to gather support for different causes.” Randall v. Change.org, Inc., N.D.Ca. No. 20-cv-03863-EMC, 2020 WL 7240210, *1 (Dec. 9, 2020). Specifically, Brentley argues that State‘s Exhibit C was not admissible because the victim did not testify that it “was a fair and accurate depiction.” (Appellant‘s Brief at 10).
{¶6} Generally, the admission or exclusion of evidence lies within the trial court‘s discretion, and a reviewing court should not reverse absent an abuse of discretion and material prejudice. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 62. An abuse of discretion suggests that a decision is unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157-158 (1980).
{¶7} However, a defendant‘s failure to object to the admission evidence in the trial court waives all but plain error on review. “We recognize plain error “‘with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.“‘” State v. Bradshaw, 3d Dist. Logan No. 8-22-09, 2023-Ohio-1244, ¶ 21, quoting State v. Landrum, 53 Ohio St.3d 107, 111 (1990), quoting State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus. “For plain error to apply, the trial court must have deviated from a legal rule, the error must have been an obvious defect in the proceeding, and the error must have affected a substantial right.” Id. That is, “[u]nder the plain error standard, the appellant must demonstrate that there is a reasonable probability that, but for the trial court‘s error, the outcome of the proceeding would have been otherwise.” Id.
Analysis
{¶8} On appeal, Brentley argues that the trial court erred by admitting State‘s Exhibit C because the State failed to sufficiently authenticate the exhibit. “Before
{¶9} ”
{¶10} In this case, since Brentley failed to object to the admission of State‘s Exhibit C, he waived all but plain error on review. However, based on our review of the record, it was not error, let alone plain error, for the trial court to admit State‘s Exhibit C.
{¶11} At trial, the victim identified State‘s Exhibit C as a photograph that she took of herself in the bathroom of the “apartment that [she] shared” with Brentley which she sent to Brentley while “he was at work.” (Sept. 6, 2022 Tr. at 10). See Ross at ¶ 39. Based on that testimony, we conclude that the State presented sufficient testimony of a witness with knowledge that photograph is what it is claimed to be for purposes of identification or authentication. Likewise, we conclude that the State presented sufficient evidence to authenticate the photograph by presenting evidence of distinctive characteristics of the image as required by
{¶12} Brentley‘s third assignment of error is overruled.
First Assignment of Error
The State Failed To Produce Sufficient Evidence To Prove Each And Every Element Of The Offenses Charged In The Complaints.
Second Assignment of Error
The Convictions In This Matter Were Against The Manifest Weight Of The Evidence.
{¶13} In his first and second assignments of error, Brentley argues that his violating-a-protection-order and telecommunications-harassment convictions are based on insufficient evidence and are against the manifest weight of the evidence.
Standard of Review
{¶14} Manifest “weight of the evidence and sufficiency of the evidence are clearly different legal concepts.” State v. Thompkins, 78 Ohio St.3d 380, 389 (1997). Thus, we address each legal concept individually.
{¶15} “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
{¶16} On the other hand, in determining whether a conviction is against the manifest weight of the evidence, a reviewing court must examine 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 (1st Dist.1983). A reviewing
Sufficiency of the Evidence Analysis
{¶17} As an initial matter, the record reveals that Brentley failed to renew his
In order to preserve the issue of sufficiency on appeal, this court has held that “[w]hen a defendant moves for acquittal at the close of the state‘s evidence and that motion is denied, the defendant waives any error which might have occurred in overruling the motion by proceeding to introduce evidence in his or her defense. In order to preserve a sufficiency of the evidence challenge on appeal once a defendant elects to present evidence on his behalf, the defendant must renew his
Crim.R. 29 motion at the close of all the evidence.”
State v. Hurley, 3d Dist. Hardin No. 6-13-02, 2014-Ohio-2716, ¶ 36, quoting State v. Edwards, 3d Dist. Marion No. 9-03-63, 2004-Ohio-4015, ¶ 6. Based on this court‘s precedent, Brentley‘s failure to renew his
{¶18} “However, ‘[w]hether a sufficiency of the evidence argument is reviewed under a prejudicial error standard or under a plain error standard is academic.‘” Id. at ¶ 38, citing Perrysburg v. Miller, 153 Ohio App.3d 665, 2003-Ohio-4221, ¶ 57 (6th Dist.), quoting State v. Brown, 2d Dist. Montgomery No. 17891, 2000 WL 966161, *8 (July 14, 2000). “Regardless of the standard used, ‘a conviction based on legally insufficient evidence constitutes a denial of due process, and constitutes a manifest injustice.‘” Id., quoting Thompkins, 78 Ohio St.3d at 386-87. Accordingly, we will proceed to determine whether the State presented sufficient evidence to support Brentley‘s convictions. See id.
{¶19} We begin by addressing Brantley‘s sufficiency-of-the-evidence argument as it relates to his violating-a-protection-order conviction, followed by his telecommunications-harassment conviction.
Violating A Protection Order
{¶20} Brentley was convicted of violating a protection order under
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.
{¶21} On appeal, Brentley argues that there is insufficient evidence that he violated a protection order because the State failed to prove that he traveled within the 500-foot distance of Harp “wherever [she] may be found, or any place [Brentley] knows or should know [Harp is] likely to be” as prohibited by the protection order issued on January 8, 2020. (State‘s Ex. I). However, viewing the evidence in a light most favorable to the prosecution, we conclude that Brentley‘s violating-a-protection-order conviction is based on sufficient evidence. That is, we conclude that the State presented circumstantial evidence that Brentley traveled within the 500-foot distance prohibited by the protection order. See State v. Carnicom, 6th Dist. Wood No. WD-20-027, 2021-Ohio-1675, ¶ 20 (concluding that Carnicom‘s violating-a-protection-order conviction was based on sufficient evidence since the State “presented strong, circumstantial evidence that Carnicom called [the victim] 52 times after being served with the TPO“).
{¶22} “Circumstantial evidence is “‘the proof of certain facts and circumstances in a given case, from which the jury may infer other connected facts which usually and reasonably follow according to the common experience of mankind.“‘” State v. Cole, 3d Dist. Seneca No. 13-10-30, 2011-Ohio-409, ¶ 23, quoting State v. Fisher, 3d Dist. Auglaize No. 2-10-09, 2010-Ohio-5192, ¶ 26,
{¶23} In this case, the State presented evidence at trial from which the trier of fact could reasonably infer that Brentley traveled within the 500-foot distance prohibited by the protection order. Specifically, the victim testified that she discovered Brentley parked beside the curb in front of her residence on May 10, 2021. She testified that she confirmed that Brentley was the person operating the vehicle parked in front of her residence as she drove past the vehicle. Based on that
Telecommunications Harassment
{¶24} Next, we will address the sufficiency of the evidence supporting Brentley‘s telecommunications-harassment conviction. As an initial matter, Brentley contends that his telecommunications-harassment conviction is based on insufficient evidence because the State presented insufficient evidence that he ““knowingly post[ed] a text or audio statement or an image on an internet web site or web page for the purpose of abusing, threatening, or harassing another person.“” (Appellant‘s Brief at 6, quoting
{¶25} The telecommunications-harassment offense of which Brentley was convicted provides, in its relevant part, that
[n]o 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 * * * [m]akes the telecommunication with purpose to harass, intimidate, or abuse any person at the premises to
which the telecommunication is made, whether or not actual communication takes place between the caller and a recipient.
{¶26} As relevant here, a telecommunication is “the origination, emission, dissemination, [or] transmission * * * of data [or] images * * * over any communications system by any method, including, but not limited to, a fiber optic, electronic, magnetic, optical, digital, or analog method.”
any instrument, equipment, machine, or other device that facilitates telecommunication, including, but not limited to, a computer, computer network, computer chip, computer circuit, scanner, telephone, cellular telephone, pager, personal communications device, transponder, receiver, radio, modem, or device that enables the use of a modem.
{¶27} However, Brentley does not dispute the evidence concerning the underlying elements of his telecommunications-harassment conviction; rather, he disputes the issue of identity as to his convictions. Compare State v. Missler, 3d
{¶28} In support of his sufficiency-of-the-evidence challenge, Brentley argues that a rational trier of fact could not have found that he was the “caller” or “was the one who posted the[] comments and images.” (Appellant‘s Brief at 6). Specifically, Brentley argues that his telecommunications-harassment conviction is based on insufficient evidence because State‘s Exhibit C was inadmissible. We disagree.
{¶29} First, based on our determination under Brentley‘s third assignment of error, State‘s Exhibit C was properly admitted into evidence. Nevertheless, even if State‘s Exhibit C was inadmissible, the State presented sufficient evidence that Brentley was the caller or the person who posted the comments and images on Change.org. Specifically, the victim testified that Brentley was the caller or person
Manifest Weight of the Evidence
{¶30} Having concluded that Brentley‘s violating-a-protection-order and telecommunications-harassment convictions are based on sufficient evidence, we next address Brentley‘s arguments that his violating-a-protection-order and telecommunications-harassment convictions are against the manifest weight of the evidence.
{¶31} However, as an initial matter, Brentley‘s contention challenging the manifest weight of the evidence extends only to his violating-a-protection-order conviction. See State v. Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 10. That is, Brentley offers no support for his argument that his telecommunications-
{¶32} Importantly, Brentley failed to include an argument regarding how his telecommunications-harassment conviction is against the manifest weight of the evidence and failed to provide citations to the authorities, statutes, and parts of the record that support his argument. As a result, we will not develop on Brentley‘s
{¶33} Nevertheless, Brentley contends that his violating-a-protection-order conviction is against the manifest weight of the evidence because the evidence identifying him as the person who committed the offenses lacks credibility and reliability. “Although we review credibility when considering the manifest weight of the evidence, the credibility of witnesses is primarily a determination for the trier of fact.” State v. Banks, 8th Dist. Cuyahoga No. 96535, 2011-Ohio-5671, ¶ 13, citing DeHass, 10 Ohio St.2d 230, at paragraph one of the syllabus. “The trier of fact is best able ‘to view the witnesses and observe their demeanor, gestures[,] and voice inflections, and use these observations in weighing the credibility of the proffered testimony.‘” Id., quoting State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶ 24, citing Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80-81 (1984).
{¶34} On appeal, Brentley argues that his violating-a-protection-order conviction is against the manifest weight of the evidence because the State‘s witnesses—the victim and the victim‘s son—had “a clear motive * * * to misrepresent themselves.” (Appellant‘s Brief at 7). Specifically, Brentley contends that the victim‘s testimony was not believable since she testified that she saw
{¶35} After reviewing the evidence, we cannot conclude that the trier of fact lost its way and created such a manifest miscarriage of justice as to its credibility determination requiring that we reverse Brentley‘s conviction and order a new trial. Even though the “credibility of the witnesses was the primary factor in determining guilt” in this case, ““the choice between credible witnesses and their conflicting testimony rests solely with the finder of fact and an appellate court may not substitute its own judgment for that of the finder of fact.“‘” State v. White, 3d Dist. Seneca No. 13-16-21, 2017-Ohio-1488, ¶ 50, quoting In re N.Z., 11th Dist. Lake Nos. 2010-L-023, 2010-L-035, and 2010-L-041, 2011-Ohio-6845, ¶ 79, quoting State v. Awan, 22 Ohio St.3d 120, 123 (1986). Importantly, Brentley‘s trial counsel explored the credibility issue at trial and thoroughly cross-examined the victim and her son. See State v. Bachman, 6th Dist. Fulton No. F-17-006, 2018-Ohio-1242, ¶ 18.
{¶36} As a result, after reviewing the entirety of the record, we conclude that Brentley‘s arguments concerning the weight of the evidence are unpersuasive. Therefore, we conclude that Brentley‘s violating-a-protection-order conviction is not against the manifest weight of the evidence.
{¶37} Brentley‘s first and second assignments of error are overruled.
{¶38} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgments of the trial court.
Judgments Affirmed
MILLER, P.J. and WALDICK, J., concur.
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