STATE OF OHIO v. MICHELLE L. KRONENBERG
No. 101403
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
March 19, 2015
2015-Ohio-1020
Boyle, J., Keough, P.J., and E.A. Gallagher, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-13-579027-A
BEFORE: Boyle, J., Keough, P.J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: March 19, 2015
Britta M. Barthol
P.O. Box 218
Northfield, Ohio 44067
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Kerry A. Sowul
Assistant County Prosecutor
9th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, J.:
Procedural History and Facts
{¶2} In October 2013, Kronenberg was indicted on two counts: (1) violating a protection order in violation of
{¶3} Prior to trial, the court referred Kronenberg to the court psychiatric clinic for a competency evaluation to stand trial and to waive her right to counsel. Based on the inquiry by the trial court and the court psychiatric clinic reports provided, the trial court allowed Kronenberg to invoke her right to self-representation, and the matter proceeded to a bench trial.
{¶4} The state presented two witnesses at trial: Mayfield Heights Police Officer Matthew Mikolay, and the victim, James LaMarca. Through the witnesses’ testimony, the state presented the following evidence.
{¶5} LaMarca, a funeral home director for DiCicco Funeral Homes in Mayfield Heights, first met Kronenberg around 1989 when she worked for the funeral home as a telemarketer. Kronenberg worked at the funeral home for approximately one year, during which time the two became friends. According to LaMarca, he remained friends with Kronenberg for approximately ten years after she no longer worked at the funeral home. In
{¶6} LaMarca further testified that Kronenberg‘s refusal to stop contacting him, despite being asked “many times” and ordered to do so, resulted in a few court cases in Lyndhurst and cases filed “down here.” LaMarca specifically testified that Kronenberg had previously been convicted of telecommunications harassment in Judge Sutula‘s courtroom in 2011 and that she received a three-year prison sentence. He further indicated that there were other earlier cases prosecuted in common pleas court against Kronenberg in 2008 and 2009.
{¶7} As to the facts giving rise to the instant case, LaMarca testified that Kronenberg called his cell phone approximately five days after she was released from prison and left a voicemail, asking LaMarca for cigarettes, pop, and a ride to her father‘s house. The state offered the recorded voicemail message into evidence. LaMarca testified that he has received calls like this from Kronenberg in the past, prompting LaMarca to contact the police and resulting in criminal prosecution against Kronenberg. LaMarca further explained the anxiety and terror associated with these calls and that he told Kronenberg at the last trial that he “didn‘t want anything to do with her.”
{¶8} Officer Mikolay testified that he responded to the complaint concerning Kronenberg violating a protective order. Officer Mikolay confirmed that a protective order was
{¶9} The trial court ultimately found Kronenberg guilty of both counts of the indictment. The court merged the two counts as allied offenses, and the state elected to proceed on Count 1. The trial court imposed the maximum sentence of three years in prison.
{¶10} Kronenberg now appeals, raising the following three assignments of error:
I. The evidence was insufficient as a matter of law to support a finding beyond a reasonable doubt that appellant was guilty of the telecommunications harassment and violating a protection order.
II. The trial court erred by imposing the maximum sentence and failing to make the required findings under
R.C. 2929.11 andR.C. 2929.12 .III. The trial court erred when it failed to grant the appellant‘s motion to dismiss count two of the indictment.
Sufficiency of the Evidence
{¶11} In her first assignment of error, Kronenberg argues that the state failed to present sufficient evidence to convict her of telecommunication harassment and violating a protection order. We disagree.
{¶12} When an appellate court reviews a record upon a sufficiency challenge, “‘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.‘” State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
A. Telecommunications Harassment
No person shall make or cause to be made a telecommunication, or permit a telecommunication to be made from a telecommunications device under the person‘s control, with purpose to abuse, threaten, or harass another person.
{¶14} Kronenberg argues that the state failed to produce sufficient evidence that she placed a telephone call with the “purpose to abuse, threaten, or harass” LaMarca. According to Kronenberg, the state only produced evidence that she called LaMarca a single time for the purpose of asking for help. She argues that the mere fact that LaMarca felt harassed by the telephone call is irrelevant for satisfying the purpose element of the offense.
{¶15} Initially, we note that
{¶16} Under
{¶17} Here, we find that the state produced sufficient evidence that Kronenberg‘s purpose of calling LaMarca was to harass him. The record reveals that Kronenberg has a history of ignoring the protection order and contacting LaMarca, despite knowing the torment that her calls inflict upon him and his family. Kronenberg couching the call as a request for help does not change the true nature of the call — an attempt to renew a relationship that had been terminated years earlier. In this case, Kronenberg contacted LaMarca almost immediately after being released from prison for similar unlawful conduct. Given these circumstances, any rational trier of fact could have found that Kronenberg acted with the requisite purpose to commit telecommunications harassment. See State v. Kronenberg, 8th Dist. Cuyahoga No. 96797, 2012-Ohio-589 (finding that state presented sufficient evidence to prove the requisite purpose to support a conviction of telecommunications harassment under nearly identical facts involving same victim and same defendant).
{¶18} Kronenberg next argues that her felony conviction of telecommunications harassment required proof that “this was a subsequent offense under this section.” She argues that the state failed to submit a certified journal entry of any prior conviction for telecommunications harassment and therefore failed to meet its burden of proof. Kronenberg, however, fails to offer any authority in support of her claim that the state must prove the prior offense with a “certified journal entry.”
{¶19} Through LaMarca‘s testimony, the state offered evidence that Kronenberg has previously been convicted of telecommunications harassment. We find that this evidence is
B. Violating a Protection Order
{¶20} Kronenberg was also convicted of violating a protection order under
{¶21} This first assignment of error is overruled.
Maximum Sentence
{¶22} In her second assignment of error, Kronenberg argues that the trial court erred in imposing a three-year maximum sentence without first making the required findings under
{¶23}
{¶24} The trial court has the full discretion to impose any term of imprisonment within the statutory range, but it must consider the sentencing purposes in
{¶25}
{¶26}
{¶27} Contrary to Kronenberg‘s assertion, the trial court was not required to make any factual findings under
{¶28} The trial court‘s journal entry indicates that the court considered “all required factors of the law” and concluded that prison is consistent with the purpose of
I have imposed the maximum sentence that the court could impose in this matter based on all of the facts and circumstances surrounding the case, as well as and mostly including the numerous convictions and repeated convictions for the same offense and the same victim.
Also, for the fact that she has committed this crime while on post-release control from her other case that she had served a three-year sentence on, the court does feel that a maximum sentence is appropriate in this matter.
{¶29} Thus, given that the trial court properly considered the purposes and principles of felony sentencing set forth in
Constitutionality of R.C. 2917.21(B)
{¶30} In her final assignment of error, Kronenberg argues that
{¶31} Initially, we note that there is a strong presumption in favor of the constitutionality of statutes. State v. Anderson, 57 Ohio St.3d 168, 171, 566 N.E.2d 1224 (1991). The party challenging a statute must prove that it is unconstitutional beyond a reasonable doubt. Id.
Vagueness
{¶33} The Ohio Supreme Court has explained the rationale for the “void for vagueness” doctrine as follows:
Three “values” rationales are advanced to support the “void for vagueness” doctrine. * * * These values are first, to provide fair warning to the ordinary citizen so behavior may comport with the dictates of the statute; second, to preclude arbitrary, capricious and generally discriminatory enforcement by officials given too much authority and too few constraints; and third, to ensure that fundamental constitutionally protected freedoms are not unreasonably impinged or inhibited.
State v. Tanner, 14 Ohio St.3d 1, 3, 472 N.E.2d 689 (1984).
{¶34} Kronenberg argues that
At least one other Ohio court has addressed and rejected this exact argument, stating the following:
The fact that the statute does not place legal definitions on each of these terms demonstrates that the General Assembly intended to prohibit conduct that is easily definable by the common everyday meaning of these words. A person of ordinary intelligence would know what type of conduct is prohibited. A person is prohibited from making a telephone call with the purpose to mistreat another person, to express a threat to another person, * * * or to persistently torment the recipient of the telephone call. Although
R.C. 2917.21(B) implicates a First Amendment freedom by regulating speech, the statute is not vague for not establishing a standard of conduct.
State v. Dennis, 3d Dist. Allen No. 1-97-42, 1997 Ohio App. LEXIS 5049, *5-6
{¶35} The Dennis court upheld the statute as constitutional, recognizing that the statute specifically identifies types of similar behavior that will not be tolerated from persons using the telephone, namely, that a person cannot make a telephone call with the purpose of being abusive, threatening, or harassing to another person. We find their reasoning persuasive and likewise hold that the statute is not unconstitutionally vague.
Overbreadth
{¶36} A statute is over broad if within its reach it prohibits constitutionally protected First Amendment conduct. Baumgartner, 8th Dist. Cuyahoga Nos. 89190, 91027, and 91028, 2009-Ohio-624, ¶ 43, citing Akron v. Rowland, 67 Ohio St.3d 374, 381, 618 N.E.2d 138 (1993).
{¶37} When performing an overbreadth analysis, courts first consider if the statute regulates speech content or speech-related conduct. State v. Kinstle, 3d Dist. Allen No. 1-11-45, 2012-Ohio-5952, ¶ 21. If a statute regulates speech content, it must be narrowly tailored to further a compelling state interest. Id., citing Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). But “‘where conduct and not merely speech is involved, * * * the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute‘s plainly legitimate sweep.‘” Id., quoting Broadrick at 615. Since
{¶39} The third assignment of error is overruled.
{¶40} Judgment affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY J. BOYLE, JUDGE
EILEEN A. GALLAGHER, J., CONCURS ON ASSIGNMENTS OF ERROR 2 AND 3 AND CONCURS WITH JUDGE KEOUGH‘S SEPARATE OPINION ON ASSIGNMENT OF ERROR 1
KATHLEEN ANN KEOUGH, P.J., CONCURRING IN JUDGMENT ONLY IN PART:
{¶41} I concur in judgment only with the majority‘s resolution of Kronenberg‘s first assignment of error and write separately to address the “prior offense” and “prior conviction” distinction. I concur fully with the remaining majority opinion.
{¶42} In her first assignment of error, Kronenberg contends that insufficient evidence exists to support her felony conviction for telecommunications harassment because the state failed to submit a certified journal entry of any prior conviction for telecommunications harassment. Insofar as Kronenberg is attempting to rely on
{¶43} The court recognized that other means of proving a prior conviction exists including stipulation and admission. Id. at ¶ 12, 14. The court also recognized that proof of prior conviction can be achieved by testimony of a witness who has both knowledge of the prior convictions, and who also can identify the accused as the offender involved in them. Id. at ¶ 22, citing State v. Frambach, 81 Ohio App.3d 834, 843, 612 N.E.2d 424 (9th Dist.1992) (“uncontested avowal to the effect that Frambach had suffered ‘a prior theft conviction’ was sufficient to allow the jurors to conclude beyond all reasonable doubt that this element of the
{¶44} In this case, however, proof of a prior conviction was not required for the state to elevate the degree of the offense. Rather,
{¶45} Whether a statute requires a “prior offense” or “prior conviction,” it remains that this prior “‘does not simply enhance the penalty but transforms the crime itself by increasing its degree.‘” State v. Salupo, 177 Ohio App.3d 354, 2008-Ohio-3721, 894 N.E.2d 746, ¶ 15 (9th Dist.), quoting State v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, 863 N.E.2d 1024, ¶ 8. Therefore, the prior offense or conviction becomes an essential element of the crime that the state
{¶46} In State v. Brantley, 1 Ohio St.2d 139, 205 N.E.2d 391 (1965), the Ohio Supreme Court distinguished between the words “offense” and “conviction” when addressing degree enhancements for subsequent offenses. In Brantley, the defendant committed a “subsequent offense” for gaming prior to his conviction for his first violation of the gaming statute. The court held at its syllabus,
Where a statute provides that one who violates it shall be punished as for a misdemeanor “for a first offense” and punished as for a felony “for each subsequent offense,” a second violation of that statute may be punished as a “subsequent offense” thereunder if the offender has been convicted of a previous violation of that statute before his indictment for the second violation thereof although the second violation occurred prior to his conviction of the previous violation. (Paragraph two of the syllabus of Carey v. State, 70 Ohio St. 121, distinguished.)
{¶47} Therefore, in my opinion, while a prior conviction is not needed to indict the person with the elevated degree of a subsequent offense, the prior offense must result in a conviction prior to the resolution of the subsequent offense for a defendant to be convicted on the enhanced degree of the subsequent offense. The state cannot merely rely on a prior offense without a conviction of that offense to elevate the degree of a subsequent offense. Without this ultimate conviction, complaints, unfounded charges, dismissal of charges, or even acquittals of
{¶48} In this case, the state was required to prove that Kronenberg had a prior offense for telecommunications harassment to withstand its burden of proving the subsequent felony charge for telecommunications harassment. However, I would find that the prior offense must have resulted in a conviction. Proof of the prior offense would be of the same manner and methods as set forth in the Ohio Supreme Court‘s opinion in Gwen, 134 Ohio St.3d 284, 2012-Ohio-5046, 982 N.E.2d 626. Therefore, applying Gwen to the case before this court, the state offered sufficient evidence through the victim‘s testimony to prove that Kronenberg had a prior offense, which resulted in a conviction, for telephone harassment. The victim identified that Kronenberg previously was charged with telephone harassment, he was the victim of the offense, and Kronenberg was convicted and was sentenced to prison.