State v. NealState v. Neal
Tim A. Dugan, for appellant.
DECISION AND JUDGMENT
I. Introduction
{¶ 1} This is an appeal from a conviction for menacing by stalking, in violation of
{¶ 2} This dispute surrounds the relationship appellant has with his estranged wife, Rebecca Neal. The two married in February 2012. The couple had three children during the course of their decade long relationship. Appellant and his estranged wife ceased living together in July 2012. Appellant‘s conviction for menacing by stalking stems from incidents that occurred between March 8 and 31, 2014.
{¶ 3} On March 8, 2014, Toledo Police Officer Todd Babcock was dispatched to Rebecca‘s home for a call of domestic disturbance at 3:00 a.m. Upon arriving at the scene, Officer Babcock saw appellant walking down the road near Rebecca‘s home. Appellant seemed dazed and Officer Babcock suspected he was involved in the domestic disturbance at Rebecca‘s home. Officer Babcock testified that he saw appellant was slightly injured and had some blood on him. Appellant told Officer Babcock he was currently residing at Rebecca‘s home but the two were getting a divorce. Officer Babcock testified he believed Rebecca was fearful оf appellant that morning when he interviewed her.
{¶ 4} The domestic disturbance involved an altercation between appellant and Rebecca‘s current boyfriend, Kenneth Vawters. That night, Rebecca and Vawters returned to Rebecca‘s home, where appellant was waiting on Rebecca‘s front porch. Upon seeing appellant, Rebecca exited the vehicle and Vawters began to back out of the driveway. Appellаnt then began hitting Vawters’ vehicle with his fist, at which point Vawters exited his vehicle and began wrestling on the ground with appellant. At some
{¶ 5} After interviewing Rebecca and appellant, Officer Babcock took the house key appellant still had for Rebecca‘s house. The key opened one of the locks on the back door to Rebecca‘s house. The key was returned to Rebecca and Officer Babcock retrieved appellant‘s coat and phone from the premises. Vawters did not make a statement to Officer Babcock that night as he was in the bathroom rinsing his eyes from the pepper spray.
{¶ 6} On the same day around 10:30 a.m., Toledo Police Officer George Roush was dispatched to Rebecca‘s home. Rebecca called thе police because appellant was ramming his vehicle into the garage door of Rebecca‘s home. Officer Roush noticed damage to the garage door and that there were bumper prints on the door. Officer Roush found Rebecca was very fearful and emotional when he responded to the residence. Rebecca would later testify that appellant‘s actions that morning made her very fearful because the couple‘s children would play frequently in the garage. She stated that this made her fearful for her life because appellant was aware their children would play in the garage and by ramming his vehicle into the garage, he was putting their lives in danger.
{¶ 7} From March 8 through March 16, 2014, several text messages were exchanged between appellant and Rebecca, some of which Rebecca found threatening. On March 8, 2014, appellant sent a text message tо Rebecca saying, “Hope all your lies & deciet was worth it!, u playing wit fire like im stupid.” On March 14, 2014, appellant
{¶ 8} On March 18, 2014, Rebecca returned to her home to find appellant exiting her garage. The two went to a nearby park where Rebecca recorded their conversation with the camera on her cell phone. This recording was presented to the jury. During the video, appellant does not deny breaking into Rebecca‘s home or destroying her property. At several points in the recording, Rebecca told appellant that he was making her аfraid of him. The couple attempted to come to an agreement about how to communicate with each other in a peaceful manner.
{¶ 9} On March 25, 2014, Rebecca returned to her home to find her personal belongings, including her mattress, were strewn across the front yard of her home. Rebecca told the responding officer, Toledo Police Officer Aaron James, that she believed appellant had broken into her home and moved her possessions onto the front lawn. She believed this to be the case due to text messages she had received from appellant earlier in the day. Rebecca testified that she received a text message from appellant warning her there would be consequences for not answering her phone when he was trying to reach her. The only text messages that appeared in the phone records from appellant to Rebеcca was asking why Rebecca was not answering her phone.
{¶ 11} On March 31, 2014, Toledo Police Officer Joseph Petro responded to a call at Vawters’ residence at 3:00 a.m. Rebecca testified that she received a text message from appellant telling her she needed to leave the place she was currently located. This text message was not in the phone records Rebecca provided to the police. Vawters аnd Rebecca were watching television with her children when they heard a loud thud at the front door. Shortly after, a loud crashing noise came from the front door. Vawters went to investigate the noises and saw his front storm door had been shattered. Vawters testified that he saw appellant in the immediate area following the loud crashing noise. A brick and a rock were found near the door. A charge for menacing by stalking was brought against appellant.
B. Procedural History
{¶ 12} During the ensuing trial, the prosecution entered into evidence the phone records from a phone Rebecca gave Detective Mary Jo Jaggers. The phone records contained all of the text messages and phone calls Rebecca received or sent during the period of March 8 through 31, 2014. The prosecution redacted these phone records to only show the texts and calls between appellant and Rebecca. Defense counsel objected
{¶ 13} The phone records show Rebecca was involved romantically with pеople who were not her husband. Defense specifically wanted several text messages Rebecca sent to her friends about appellant. This conversation took place on March 24, 2014. Within that conversation, Rebecca stated, “He do this shit every Saturday. And he think marriage go work I think NOT.” She also tells her friend, “He think because he bought that ring everything is good. I don‘t even wear it and he can‘t seem to figure out why.” To another friend, Rebecca says, “I dnt еven use that man last name..smh,,im not into appearences..he be mad ass hell too..lol.” Defense counsel objected to the entry of the redacted phone records before trial and during the trial. Defense counsel also proffered the unredacted phone records into the record at trial. They were not admitted by the trial court.
{¶ 14} At trial, defense counsel spent a large amount of time on his cross-examination of Rebecсa asking her about the text messages. During this cross-examination, Rebecca admitted she had another cell phone which she did not give to the police. Officer Jaggers testified that there was a landline at Rebecca‘s home which the police also did not retrieve records from. Rebecca testified that on March 8, 2014, she received several harassing phone calls from appellant, but these calls were not on the
II. Analysis
A. Assignments of Error
{¶ 15} Appellant brings four assignments of error for our review:
- The trial court erred by not allowing the unredacted phone records of the victim‘s phone to be used at trial.
- Appellant received ineffective assistance of counsel as trial counsel failed to attempt to utilize the unredacted phone records for cross-examination of the victim.
- The state failed to provide legally sufficient evidence to sustain a conviction for menacing by stalking.
- Appellant‘s conviction for menacing by stalking fell against the manifest weight of the evidence.
B. Redacted Phone Records Entered into Evidence
{¶ 16} Appellant first contends the trial court abused its discretion when it allowed the prosecution to enter redacted phone records into evidence. Decisions surrounding the admissibility of evidence are reviewed for an abuse of discretion. Estate of Johnson v. Randall Smith, Inc., 135 Ohio St.3d 440, 2013-Ohio-1507, 989 N.E.2d 35, ¶ 22, citing State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032. A trial court‘s
{¶ 17} To satisfy the elements of menacing by stalking under
{¶ 18} We find the probative value of the unredacted phone records was substantially outweighed by their prejudicial effect. The unredacted phone records contained information which showed Rebecca was maintaining relationships with people who were not her husband. The prejudicial value of showing the infidelity of Rebecca far оutweighed the probative value appellant was attempting to show with the entirety of the phone records. The ability to show Rebecca did not text message anyone about the harassment is far outweighed by the prejudicial effect of the rest of her conversations. We, therefore, find the trial court did not abuse its discretion and find appellant‘s first assignment of error not well-taken.
{¶ 19} Appellant next argues trial counsel provided ineffective assistance of counsel because counsel failed to propose redacting the records pertaining to Rebecca‘s other relationships. In order to prove ineffective assistance of counsel, appellant must show defense counsel‘s performance fell below an objective standard of reasonableness, and a reasonable probability exists that, but for counsel‘s error, the results of the trial would have beеn different. Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Ohio, a properly licensed attorney is presumed competent. State v. Hamblin, 37 Ohio St.3d 153, 524 N.E.2d 476 (1988). “Debatable strategic and tactical decisions may not form the basis of a claim for ineffective assistance of counsel.” State v. Campbell, 6th Dist. Lucas No. L-05-1284, 2006-Ohio-4435, ¶ 20, citing State v. Phillips, 74 Ohio St.3d 72, 85-88, 656 N.E.2d 643 (1995).
{¶ 20} Appellant argues his counsel was ineffective when counsel failed to request only those text messages relating to Rebecca‘s other relationships be redacted. Appellant argues his trial counsel was ineffective because counsel failed to attempt to cross-examine Rebecca about the unredacted version of the phone records, despite the trial court‘s ruling the unredacted records were inadmissible.
{¶ 21} We do not find that either of these actions falls below an objective standard of reasonableness. Trial counsel spent three to four hours cross-examining Rebecca and a large amount of that cross-examination surrounded her text messages and her conversations with appellant. During that cross-examination, trial counsel effectively
{¶ 22} We also do not find that trial counsel‘s handling of the redaction of the phone records rises to the level of ineffective assistance of counsel. Appellant argues the conversation Rebecca had with her friend on March 24, 2014, should have been entered into evidence and would have changed the entire evidentiary picture. We do not find there was a reasonable probability that if these records were entered into evidenсe the result of the proceeding would have been different.
{¶ 23} If the other text messages had been entered into evidence, trial counsel would have simply been able to ask if she spoke with anyone else about the alleged harassment by appellant. We do not find that there is a reasonable probability this question would have changed the reliability or credibility of Rebecca as a witness or her testimony. Defense counsel was very effective in cross-examination and attempted impeachment of Rebecca based on the records admitted into evidence.
D. Insufficient Evidence
{¶ 25} Appellant‘s third assignment of error contends the state supplied insufficient evidence to support appellant‘s conviсtion for menacing by stalking. When reviewing if the state provided legally sufficient evidence to support a conviction, an appellate court must examine all of the evidence admitted at trial and determine whether the evidence, if believed by the trier of fact, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. “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.” Id.
{¶ 26}
{¶ 28} The state also showed appellant knowingly caused Rebecca to believe she was in danger of physical harm. A person acts knowingly “when the person is aware that the person‘s conduct will probably cause a certain result or will probably bе of a certain nature.”
{¶ 29} Finally, the state provided sufficient evidence to convince an average mind that there was a history of violence between appellant and Rebecca through the testimony
E. Manifest Weight of Evidence
{¶ 30} Appellant contends in his final assignment of error that his conviction fell against the manifest weight of the evidence. When reviewing a decision based on a manifest weight argument, an “appellate court sits as a thirteenth juror and disagrees with the fact finder‘s resolution of the conflicting testimony.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). The court reviews the entire record, weighs thе evidence and all reasonable inferences, and considers the credibility of witnesses. Tibbs, 457 U.S. at 42. The court then determines whether in resolving the conflicts in the evidence, “the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” Id. A new trial must only be granted “in the exceptional case in which the evidence weighs heavily against the conviction.” Id. “A reviewing court will not reverse а jury verdict where there is
{¶ 31} We do not find the jury lost its way and created a miscarriage of justice when it convicted appellant of menacing by stalking. The state provided substantial evidence for the jury to conclude appellant was guilty of menacing by stalking beyond a reasonable doubt. Rebecca testified to the conversations, text messages, and other interactions between appellant and Rebecca. Rebecca was cross-examined by defense counsel for several hours surrounding these communications and, despite any issues with her testimony, the jury found Rebecca to be a credible witness and convicted appellant.
{¶ 32} The state also introduced several police reports of incidents between Rebecca and appellant. At least one of the incidents involved an altercation between appellant and Vawters and two of the police reports involved property damage that appellant caused. During the conversation that Rebecca recorded on her cellphone, appellant did not deny committing these actions and agreed to stop harassing Rebecca. Based on this record, we find the jury‘s verdict was not against the manifest weight of the evidence. Consequently, appellant‘s fourth assignment of error is not well-taken.
III. Conclusion
{¶ 33} Based on the foregoing reasons, we affirm the decision of the Lucas County Court of Common Pleas. Costs assessed to appellant pursuant to
Judgment affirmed.
Arlene Singer, J.
JUDGE
Thomas J. Osowik, J.
JUDGE
Stephen A. Yarbrough, J.
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.