STATE OF OHIO, PLAINTIFF-APPELLEE, v. MICHAEL H. DISABATO, DEFENDANT-APPELLANT.
CASE NO. 14-18-23
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY
Date of Decision: September 3, 2019
2019-Ohio-3542
Appeal from Marysville Municipal Court, Trial Court No. 17 CRB01010, Judgment Affirmed in Part, Reversed in Part and Cause Remanded
Jeff Ratliff for Appellant
Rick Rodger for Appellee
PRESTON, J.
{¶1} Defendant-appellant, Michael H. DiSabato (“DiSabato“), appeals the October 18, 2018 judgment of sentence of the Marysville Municipal Court. For the reasons that follow, we affirm in part and reverse in part.
{¶2} On October 25, 2017, DiSabato‘s longtime acquaintance, Bret Adams (“Adams“), filed a report with the Dublin Police Department alleging that he had received a series of threatening phone calls and text messages from DiSabato. (See Defendant‘s Exs. A, B). To support his allegations, Adams produced a collection of screenshots taken from his cell phone purporting to depict some of the unwanted communications. (See State‘s Ex. 1); (See Defendant‘s Exs. E, D). These screenshots reflect that a person identified as DiSabato sent various messages in a group text message thread that included DiSabato, Adams, and another individual. (See State‘s Ex. 1); (See Defendant‘s Ex. D). These messages include statements such as “Winter is Coming” and the phrase “TicToc” followed by two rodent emojis. (Id.); (Id.). Eventually, Adams requested that DiSabato “not contact [him] any further” and indicated that he would communicate through DiSabato‘s attorney. (Aug. 27, 2018 Tr. at 81); (State‘s Ex. 1); (Defendant‘s Ex. E). Adams also threatened to file a police report if DiSabato continued to contact him. (Id.); (Id.); (Id.). However, DiSabato sent text messages in response to Adams‘s no-contact
{¶3} A criminal complaint was not filed directly in response to Adams‘s October 25, 2017 report. Instead, DiSabato was warned by law enforcement officers not to contact Adams further, and the Dublin prosecuting attorney sent a letter to DiSabato advising him to cease all contact with Adams. (See Defendant‘s Exs. A, C, P). Nevertheless, according to Adams, he continued to receive harassing communications from DiSabato. As a result, Adams insisted that charges be brought against DiSabato. (See Defendant‘s Exs. J, L, O, S). However, the investigating officer assigned to the case concluded that DiSabato had not violated the directives not to contact Adams and declined to “pursu[e] criminal charges unless more documentation [was] presented.” (See Defendant‘s Exs. S, T). Thus, despite a series of increasingly acrimonious emails from Adams in which he expressed frustration that DiSabato was not being charged, the case was initially placed on inactive status on November 30, 2017. (See Defendant‘s Exs. A, O, S, T).
{¶4} On December 4, 2017, Adams, pro se, filed a civil complaint in the Union County Court of Common Pleas alleging that DiSabato had defamed him by falsely stating that he “was the boyfriend of an adult film star,” “practicing law without a license,” and “sexually and racially harass[ing] a mutual acquaintance *
{¶5} On December 21, 2017, a criminal complaint was filed in the Marysville Municipal Court charging DiSabato with one count of telecommunications harassment in violation of
{¶6} A jury trial was held on August 27, 2018. (See Doc. Nos. 21, 40, 41). At the close of the State‘s case, DiSabato made a motion for acquittal under
[Trial Court]: And beneath [the printed information on the verdict form] are ten signatures because I did not excuse the two alternates. * * * [D]oes either party wish to have the jury polled?
[The State]: No, Your Honor.
[Defense Counsel]: No, Your Honor. Based on that, that the actual – on the Verdict Form, the actual alternates’ signature?
[Trial Court]: The alternates did sign the Verdict Form.
[Defense Counsel]: Okay, so then the alternates deliberated, Your Honor. I think that is a violation and we do not have a good verdict of eight jurors1 and the alternates were to not participate, so we are unaware of the ability that the alternates might have had in deliberation in affecting the group,
as a whole, so I think that the Court has to declare a mistrial.
* * *
[The State]: I‘m going to leave it up to the Court, Your Honor. There‘s still eight jurors who made a decision that it was guilty. They can raise the issue on appeal, if they wish to, but there are still eight jurors that found him guilty.
[Trial Court]: Correct. I‘m going to overrule the Motion for Mistrial this afternoon.
(Aug. 27, 2018 Tr. at 276-278). Later, the trial court remarked that its “oversight” resulted in the alternate jurors’ presence during jury deliberations. (Id. at 279). The trial court then stated that it “should have excused [the alternate jurors] prior to letting [the jury] begin [its] deliberations” but “failed to do that.” (Id.). Finally, the trial court discharged the jury and adjourned. (Id. at 279-280). The judgment entry of conviction was filed on September 5, 2018. (Doc. No. 41).
{¶7} On September 7, 2018, DiSabato filed a motion for a judgment of acquittal after verdict under
{¶8} On October 18, 2018, the trial court sentenced DiSabato to 180 days in jail. (Doc. No. 45). However, the trial court suspended the entire 180-day jail sentence on condition that DiSabato successfully complete three years of probation and refrain from contacting Adams. (Id.). In addition, the trial court ordered DiSabato to pay a $1,000 fine. (Id.).
{¶9} On November 13, 2018, DiSabato filed a notice of appeal. (Doc. No. 52). He raises five assignments of error for our review. We consider DiSabato‘s assignments of error out of order. We begin by addressing DiSabato‘s fifth assignment of error. Then, we will address his second assignment of error. Finally, we will consider his first, third, and fourth assignments of error.
Assignment of Error No. V
The trial court erred when it failed to grant appellant‘s motion for acquittal after verdict.
{¶11} ”
If a jury returns a verdict of guilty * * *, a motion for judgment of acquittal may be made or renewed within fourteen days after the jury is discharged or within such further time as the court may fix during the fourteen day period. If a verdict of guilty is returned, the court may on such motion set aside the verdict and enter judgment of acquittal. * * * It shall not be a prerequisite to the making of such
motion that a similar motion has been made prior to the submission of the case to the jury.
“The purpose of a motion for acquittal is to test the sufficiency of the evidence presented at trial.” Willis at ¶ 9, citing State v. Terry, 12th Dist. Fayette No. CA2001-07-012, 2002-Ohio-4378, ¶ 9, citing State v. Williams, 74 Ohio St.3d 569, 576 (1996). Accordingly, “we review a trial court‘s decision on a
{¶12} “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.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus, superseded by state constitutional amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997). Accordingly, “[t]he 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.” Id. “In deciding if the evidence was sufficient, we neither resolve evidentiary conflicts nor assess the
{¶13} DiSabato was found guilty of telecommunications harassment in 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 * * *:
(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[.]
“‘Telecommunication’ means the origination, emission, dissemination, transmission, or reception of data, images, signals, sounds, or other intelligence or
{¶14} DiSabato does not argue that the State failed to present sufficient evidence that he knowingly made a telecommunication to Adams with knowledge that Adams had previously instructed him not to make further telecommunications. Instead, DiSabato argues that
{¶15} In response, the State observes that there “is no case law which supports [DiSabato‘s] argument.” (Appellee‘s Brief at 14). Indeed, DiSabato has failed to point to any case that directly supports his argument, and our own search has failed to uncover any case that directly supports or undermines his argument. However, we have found some cases that bear on DiSabato‘s argument, if only indirectly, and these cases suggest that when a telecommunication is made to a mobile telecommunications device or through a service accessible from any number of telecommunications devices, such as an email service or a messaging application, the State need not prove that the telecommunication was received at a specific “premises” to obtain a conviction under
{¶16} The most relevant of these cases is Delaware v. Boggs, 5th Dist. Delaware No. 18 CAC 030027, 2018-Ohio-4677. In Boggs, the defendant was convicted of one count of telecommunications harassment in violation of
{¶17} In rejecting the defendant‘s argument, the court first noted that the defendant had not “provided [the] Court with any authority to support his position that the lack of definition for ‘premises’ renders
{¶19} Although these cases do not explicitly hold that the State is not required to prove that an unwanted telecommunication was received at particular “premises” when the telecommunication in question was received via a mobile telecommunications device or through a service accessible from multiple telecommunications devices, wherever situated, each of these cases, especially Boggs, appears to rest on the assumption that no such showing is required. We find merit in this assumption. We believe that implicit in every blanket demand that a caller not send a telecommunication to a mobile telecommunications device is an instruction that the caller refrain from sending telecommunications to the mobile device at any “premises” where the mobile device is located. Thus, we conclude that when a recipient receives a telecommunication via a mobile telecommunications device and has previously told the caller not to send additional
{¶20} A contrary conclusion would likely prove unmanageable and could create confusion regarding what conduct is proscribed by
{¶22} Here, viewing the evidence in a light most favorable to the State, we conclude that any rational trier of fact could have found the elements of telecommunications harassment under
{¶23} DiSabato‘s fifth assignment of error is overruled.
Assignment of Error No. II
The trial court committed reversible error when it violated Ohio Criminal Rule 24, Ohio Criminal Rule 31, and R.C. §2945.171 .
{¶25} In noncapital cases, “[t]he court may retain alternate jurors after the jury retires to deliberate. The court must ensure that a retained alternate does not discuss the case with anyone until that alternate replaces a juror or is discharged. If an alternate replaces a juror after deliberations have begun, the court must instruct the jury to begin its deliberations anew.”
{¶27} DiSabato and the State both acknowledge that the trial court erred when it failed to exclude the alternate jurors from jury deliberations. (See Appellant‘s Brief at 8-11); (See Appellee‘s Brief at 8). However, they dispute whether the trial court‘s error constitutes reversible error. DiSabato contends that, in this case, the State had the burden to prove that the alternate jurors’ presence in the room during jury deliberations did not prejudice him. (Appellant‘s Brief at 8). He concludes that the State did not carry its burden because “prejudice must be presumed when the [alternate] jurors actually deliberated and signed the verdict form.” (Id.). In contrast, the State argues that because DiSabato did not raise an objection to the alternate jurors’ presence during deliberations until after the verdict was announced, the trial court‘s error may only be reviewed for plain error, which requires DiSabato to establish that he was prejudiced. (Appellee‘s Brief at 5-6, 8-9). According to the State, because the mere presence of the alternate jurors during deliberations does not raise a presumption of prejudice and DiSabato has otherwise
{¶28} To resolve the parties’ disagreement, we must first determine the appropriate standard of review. We begin by examining some of the cases in which the Supreme Court of Ohio applied a plain-error standard of review to a trial court‘s failure to exclude alternate jurors from jury deliberations. In State v. Murphy, “the trial court sent the alternate jurors into the jury room to listen to the jury‘s deliberations” with instructions “not ‘to participate in the deliberations in any fashion,’ even by ‘gestures’ or ‘facial movements.‘” 91 Ohio St.3d at 531. Although the court recognized that the trial court erred by allowing the alternate jurors to be present during jury deliberations,2 because “no defense objection appear[ed] in the trial court record to the presence of the alternate jurors,” the court concluded that the error was subject only to plain-error review. Id. at 532-533. The court emphasized that under plain-error analysis, an alleged error “‘“does not constitute a plain error or defect under
{¶29} The court was presented with a similar situation in State v. Jackson. In Jackson, as in Murphy, the defense was put on notice that alternate jurors would be present during jury deliberations when the trial court advised the alternate jurors to listen to the deliberations but not to participate in any fashion. 92 Ohio St.3d at 439. Nevertheless, “[d]efense counsel did not object, and in fact expressly stated that he had no objection to [the alternate jurors‘] presence.” Id. at 438. As a result, the court concluded that it was limited to reviewing the alleged error for plain error. Id. While the court held that the trial court “clearly erred” by allowing the alternate
{¶30} Furthermore, in State v. Braden, 98 Ohio St.3d 354, 2003-Ohio-1325, the trial court instructed the alternate jurors to listen to the jury deliberations but “‘not participate under any circumstances in the deliberation unless and until, if ever, they are called upon to serve as a regular juror.‘” Id. at ¶ 45-46. Yet again, “the defense did not object to the alternates’ presence during * * * the jury‘s deliberations and thus waived all but plain error.” Id. at ¶ 49, citing Olano at 741. In conducting its plain-error analysis, the court reiterated that it had “previously refused to presume prejudice when alternates have been allowed to remain present during jury deliberations * * *.” Id. at ¶ 47, citing Jackson at 439. The court ultimately concluded that the defendant failed to demonstrate specific prejudice:
Neither the conviction nor the death penalty resulted from the presence of the alternates. Nothing in the record suggests that the alternate jurors said anything or participated in any form during the jury‘s deliberations. Moreover, there is no indication from the record
that the alternates in any way disobeyed the judge‘s instructions or that their presence chilled the deliberative process.
Id. at ¶ 50. Therefore, “although it was improper for the trial court to allow the alternate jurors to remain present during deliberations, plain error [was] absent.” Id. The court has reached similar conclusions in at least two other cases applying the plain-error standard to violations of
{¶31} The foregoing cases can be contrasted with those cases in which the Supreme Court of Ohio reviewed a trial court‘s violation of
{¶32} The court determined that the alternate jurors’ presence during sentencing deliberations constituted reversible error.3 Id. at ¶ 137-138, 140. First,
{¶33} In Justice Cook‘s view, the record was not silent regarding the prejudice Gross suffered; instead, the “record contain[ed] indicia of participation by alternate jurors that create[d] a presumption of prejudice * * *.” Id. at ¶ 134. Gross “pointed to specific evidence that at least one alternate inserted himself into the actual deliberations through intrusive verbal participation, while more than one
{¶34} In State v. Downour, the court, revisiting Gross, concluded that the trial court committed reversible error by allowing an alternate juror to attend jury deliberations over objection. In Downour, the defendant unsuccessfully objected to jury instructions that permitted an alternate juror to be present in the jury room during deliberations. 126 Ohio St.3d 508, 2010-Ohio-4503, at ¶ 1. The jury then deliberated with the alternate juror present and found the defendant guilty. Id. at ¶ 2. After the verdict was returned, the defendant renewed his objection to the
{¶35} In holding that the trial court committed reversible error, a majority of the court embraced Justice Cook‘s lead opinion in Gross. See id. at ¶ 8-10. The court clarified that when a defendant objects to the presence of alternate jurors during jury deliberations, “it is the presence of the alternate jurors that shifts the burden to the state to show that any error is harmless,” rather than the alternate jurors’ participation. (Emphasis sic.) Id. at ¶ 9. The court concluded that because the defendant objected to the alternate juror‘s presence, the burden shifted to the State to demonstrate the absence of prejudice. Id. at ¶ 10. As “[n]othing in the record indicate[d] that the state established the absence of prejudice,” the court reversed the decision of the court of appeals affirming the defendant‘s conviction and remanded for a new trial. Id. at ¶ 10-11.
{¶36} After reviewing the record, we find that the instant case is more akin to Gross and Downour than it is to Murphy, Jackson, or any of the other plain-error cases. First, and most importantly, unlike the defendants in the plain-error cases, DiSabato objected to the presence of the alternate jurors during deliberations when he moved for a mistrial almost immediately after the jury‘s verdict was announced. (See Aug. 27, 2018 Tr. at 276-277). Yet, the State contends that despite DiSabato‘s motion for a mistrial, this court is restricted to plain-error review because
{¶37} We disagree. The record does not suggest that DiSabato could have objected to the presence of the alternate jurors during deliberations any earlier than he did. In contrast to Murphy, Jackson, and the rest of the above-cited cases, the trial court‘s jury instructions in this case did not indicate that the alternate jurors would be allowed to retire with the jury or caution the alternate jurors specifically not to participate in the deliberations. (See Aug. 27, 2018 Tr. at 262-275); (See Doc. No. 39). Furthermore, the record does not contain any discussion between the trial court, the State, and DiSabato‘s trial counsel in which the trial court stated that it was going to let the alternate jurors sit in on deliberations or in which either party requested or acquiesced to the presence of the alternates. Finally, the record reflects that once the jury returned with the verdict, the bailiff passed the verdict form directly from the jury foreman to the trial judge, who then announced the jury‘s verdict and noted that the alternate jurors had signed the form. (Aug. 27, 2018 Tr. at 276-277). As a result, DiSabato was unable to discover the irregularities in the verdict form until after the trial court had announced the verdict. Thus, the record does not establish that DiSabato had notice of the alternate jurors’ presence in deliberations at any time before the trial court read the verdict form into the record, at which point he promptly objected to their presence during deliberations.
{¶38} Moreover, like in Gross and Downour, DiSabato objected at a time when the trial court may have been able to take action to neutralize any prejudice caused by the alternate jurors’ presence during jury deliberations. The trial court had not yet accepted the guilty verdict and the jury had not yet been discharged. Hence, we find that under the facts of this case, DiSabato raised a sufficiently timely objection to the alternate jurors’ presence during deliberations. Accordingly, the burden shifted to the State to demonstrate that DiSabato was not prejudiced by the alternate jurors’ presence during deliberations. Downour, 126 Ohio St.3d 508, 2010-Ohio-4503, at ¶ 10.
{¶39} Having settled on the proper standard of review, we now determine whether the State demonstrated that DiSabato was not prejudiced by the alternate jurors’ presence during jury deliberations. Nothing in the record indicates that the State established an absence of prejudice to DiSabato. To the contrary, there is specific evidence in the record suggesting that the alternate jurors participated in the deliberations, which raises a presumption that DiSabato was prejudiced. See Gross, 97 Ohio St.3d 121, 2002-Ohio-5524, at ¶ 134-137 (evidence that “at least one alternate inserted himself into the actual deliberations through intrusive verbal
{¶40} First, the verdict form was signed by all eight jurors and both of the alternates. (Doc. No. 40). The verdict form includes eight spaces for the jurors to place their signatures, and each of these eight spaces contains a signature. (Id.). The remaining two signatures are written in a blank space beneath the column of signature spaces. (Id.). At least one of the alternate jurors, K.P., signed the verdict form in one of the eight spaces intended for the actual jurors’ signatures. (Id.).
{¶41} The trial court‘s jury instructions provide further support for a conclusion that the alternate jurors participated in deliberations. The jury instructions provided, in relevant part:
Your verdict on each charge must be unanimous. Upon reaching a unanimous verdict, all jurors—all members of the jury must sign, in ink, the Verdict Form that corresponds to your decision for that charge * * *. When you‘re in agreement, you can circle guilty or not guilty and each person is required to sign beneath the verdict in ink.
* * *
Consult with one another, consider each other‘s views and deliberate with the objective of reaching an agreement, if you can do so without disturbing your individual judgment. Each of you must decide each
charge for yourself but you should do so only after a discussion and consideration of the case with your fellow jurors. * * *
The foreman or forelady should see that your discussions are orderly and that each juror has the opportunity to discuss the case and to cast a vote.
(Aug. 27, 2018 Tr. at 271-273). Thus, the jury instructions given by the trial court encouraged each juror to participate actively in deliberations and charged the foreperson with a duty to ensure that each juror was involved. Furthermore, the instructions did not distinguish the actual jurors from the alternate jurors, and as noted above, the instructions did not advise the alternate jurors not to participate in jury deliberations. “The jury is presumed to follow the trial court‘s instructions.” State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, ¶ 103, citing State v. Loza, 71 Ohio St.3d 61, 75 (1994). Therefore, we must presume that the jurors and the alternate jurors deliberated as a body of ten to deliver a unanimous verdict as directed by the trial court, and the evidence in the record, specifically the verdict form, serves only to bolster, rather than contradict, this presumption. See Ottersburg, 76 F.3d at 140. To conclude otherwise, this court would be “required to presume that the alternates did not follow the court‘s instructions and * * * sat mute in the jury room” for roughly two hours of deliberations. Id.
{¶43} DiSabato‘s second assignment of error is sustained.
Assignment of Error No. I
The trial court committed reversible error when it violated
Assignment of Error No. III
The trial court erred when it denied Appellant‘s motion for a new trial.
The trial court erred when it failed to allow evidence to impeach the alleged victim and thereby violated several of Appellant‘s constitutional rights.
{¶44} Because we determined under DiSabato‘s second assignment of error that the trial court committed reversible error, DiSabato‘s first, third, and fourth assignments of error are rendered moot, and we decline to address them. See
{¶45} Having found no error prejudicial to the appellant herein in the particulars assigned and argued with respect to his fifth assignment of error, we affirm the judgment of the trial court as to that matter. However, having found error prejudicial to the appellant herein in the particulars assigned and argued with respect to his second assignment of error, we reverse the judgment of the trial court and remand to the trial court for a new trial or for other further proceedings consistent with this opinion.
Judgment Affirmed in Part,
Reversed in Part and
Cause Remanded
SHAW and WILLAMOWSKI, J.J., concur.
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