State v. DavidsonState v. Davidson
The Hobbs Law Office, H. Steven Hobbs, 119 North Commerce Street, Lewisburg, OH 45338-0489, for defendant-appellant
O P I N I O N
POWELL, J.
{¶1} Defendant-appellant, Michelle K. Davidson, appeals her conviction from Eaton Municipal Court on the charge of telecommunications harassment.
{¶2} Appellant was charged with a violation of
{¶3} Appellant‘s case was tried to the bench. The municipal court found
{¶4} “THE TRIAL COURT ERRED IN FINDING THE APPELLANT GUILTY AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
{¶5} Although a verdict is supported by sufficient evidence, an appellate court may nevertheless conclude that the verdict is against the manifest weight of the evidence because the test under the manifest weight standard is much broader than that for sufficiency of the evidence. State v. Mathews (Oct. 27, 1995), Lawrence App. No. 94CA42, 1995 WL 638572 at *4.
{¶6} A manifest weight challenge requires a determination of whether the state has appropriately carried its burden of persuasion. State v. Rigdon, Warren App. No. CA2006-05-064, 2007-Ohio-2843, ¶30. Weight is not a question of mathematics, but depends on its effect in inducing belief. State v. Norris, Monroe App. No. 06 MO 5, 2007-Ohio-6915, ¶29, quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52.
{¶7} A court considering whether a conviction is against the manifest weight of the evidence must review the entire record, weighing the evidence and all reasonable inferences, and consider the credibility of witnesses. State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶39.
{¶8} The question is whether, in resolving conflicts in the evidence, the fact-finder clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed. Id; State v. Blanton, Madison App. No. CA2005-04-016, 2006-Ohio-1785, ¶7.
{¶9} The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. Thompkins at 387.
{¶11} It appears undisputed that appellant and her ex-husband have some version of a shared parenting agreement for their children. The record demonstrates that the relationship between appellant and her ex-husband in regard to parenting is not always amicable. Appellant asserts that she is entitled to have telephone contact with the children while they are with her ex-husband and she is permitted to contact her ex-husband about parenting issues. According to appellant, any conviction based on her calls to her ex-husband‘s home telephone for such parenting matters is erroneous and contrary to the manifest weight of the evidence.
{¶12} The complaint filed in this case listed the statutory provisions of
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{¶14} Based upon the lack of evidence for an
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{¶18} Evidence was presented at trial that appellant was told not to call her ex-husband‘s home phone by the ex-husband‘s wife, and was subsequently told by her ex-husband to call his cell phone. The municipal court, as trier of fact, indicated in its written decision that a sheriff‘s deputy visited appellant and instructed her not to use the victim‘s “land line” again.1 Despite some confusion regarding the actual date when the deputy told appellant not to call the home, the deputy testified that he talked with appellant about calling the ex-husband‘s cell phone instead of the home phone on April 17, 2008.
{¶19} We note that appellant was not charged with
{¶20} We are mindful that testimony from witnesses that appellant was previously told not to call the home phone may be evidence pertinent to appellant‘s intent when she placed the calls. Cf. Dennis at *3-4 (intent derived from evidence demonstrating relationship between caller and the recipient).
{¶21} However, the evidence and the municipal court‘s finding do not favor such determination. Specifically, the municipal court observed in its decision that appellant acknowledged making most of the calls in question, but did so to discuss “her and the victim‘s children.” In finding appellant guilty of the charges, the municipal court stated, “While some of the calls may well have been about the children, the number of calls that were made after being told by Deputy Plaugher to not do so, whether meant to be or not, constituted harassment.”
{¶22} As we previously observed, a conviction based upon
{¶23} Reviewing the record under the applicable standard, we find the conviction for
{¶24} Judgment reversed and this cause remanded to the municipal court for a new trial.