2004 Ohio 1553 | Ohio Ct. App. | 2004
{¶ 3} A bench trial was held on June 19, 2003, at the end of which appellant was found guilty. He was sentenced to 30 days in jail, all of which were suspended upon the following conditions: appellant must pay a $300 fine and $70 for court costs, complete one year of unsupervised probation during which no Ohio or local laws may be broken by appellant, and complete 20 hours of community service.
{¶ 4} Appellant timely appealed the trial court's decision. Initially appellant was represented by counsel on appeal and counsel filed a brief on behalf of appellant. However, on October 21, 2003, appellant filed with this court a "Motion to Cease Present Counsel," and requested that the previously filed brief be disregarded in favor of a new one filed by him. This pro se brief submitted by appellant does not properly set forth assignments of error, but instead cites specific areas where appellant believes mistakes were committed. In the interest of justice, we will consider both briefs in deciding this case.
{¶ 6} A weight of the evidence argument challenges the believability of the evidence; which of the competing inferences suggested by the evidence is more believable or persuasive.State v. Young, 2d Dist. No. 19466, 2003-Ohio-4706. In a bench trial, the court assumes the fact-finding function of the jury. Accordingly, to warrant reversal from a bench trial under a manifest weight of the evidence claim, it must be determined that the court clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed and a new trial ordered. State v. Thompkins,
{¶ 7} Appellant was charged and convicted of telephone harassment in violation of R.C.
{¶ 8} Appellant left the following message on Hoffman's answering machine:
{¶ 9} "Gary (inaudible) to Lisa or any (inaudible). Don't fucking make trouble there, okay. You want to fucking go ahead and finish, you finish, but don't motherfucking go there. Okay. Bye. Faggot."
{¶ 10} At trial, Hoffman testified that he, his girlfriend, and his children were all threatened by the message. Hoffman also testified that although the only charge filed stemmed from one phone call made in February, appellant had been making harassing phone calls to him since October of 2002.
{¶ 11} Hoffman then stated that he continued to work for appellant during this time, and he agreed to extend his work agreement with appellant into February of 2003, even extending their arrangement after their original agreement ended in late December 2002. When questioned as to why he would continue to work for someone who was allegedly harassing him for months, Hoffman stated that his "basic motivation was so [he] could get paid." (Tr. 20).
{¶ 12} However, after Hoffman testified on direct examination that the phone call made him feel threatened and harassed, he then stated on cross-examination that appellant only called in order to vindicate himself in regards to a problem with an employee named Lisa. Hoffman stated that appellant "called to chew [him] out in front of Lisa so he wouldn't feel as bad because a girl was crying on his shoulder." (Tr. 26).
{¶ 13} Most interesting is Hoffman's next interpretation of the statement, wherein the following line of discussion takes place:
{¶ 14} "Q. Isn't it true that Mr. Patel was in fact calling you because of the harassing phone calls that you were making to his place of business, disrupting his business, and telling you to don't cause any trouble there?
{¶ 15} "A. No, actually it sounded like an invitation to go back and complete my work if I so chose. I can play it again.
{¶ 16} "MESSAGE PLAYED AGAIN.
{¶ 17} "Q. Okay. So he's telling you . . .
{¶ 18} "A. To go finish.
{¶ 19} "Q. Well, that's what he says second, but before that he says don't go back there and cause trouble. Don't cause trouble. If you want to finish, you can finish but don't cause trouble. Isn't that in essence what he's saying?
{¶ 20} "A. Right. He didn't want to — I'm taking it now that he don't want me to talk to none of his employees, you know, so I don't." (Tr. 28).
{¶ 21} In addition to the varying statements given by Hoffman during his testimony, it was also brought to light that he has previously been convicted of "false pretenses" in relation to stopping payment on a check. Hoffman further testified that he was convicted of obstruction for making false statements under oath regarding his bankruptcy filings.
{¶ 22} Appellee also called Hoffman's live-in girlfriend, Cari McAtee, to testify. She testified to being present for phone calls prior to February 12. Commenting on the phone call at issue, McAtee stated, "[Gary] wasn't too happy" to hear it. (Tr. 36).
{¶ 23} After appellee's case-in-chief, appellant presented the testimony of Donald Chitwood, another employee of appellant. Chitwood testified that in the days leading up to February 12, Hoffman made numerous calls to the hotel where Chitwood worked for appellant. Chitwood stated that Hoffman would ask whether Chitwood ever had trouble getting paid by appellant and was generally "trying to say bad things about [appellant]." (Tr. 44). Chitwood testified that he felt Hoffman was attempting to and did in fact interfere with appellant's business. Id. After appellant called to report this alleged harassment, Chitwood made a statement with the Belmont County Sheriff's Department on February 15, 2003, regarding these phone calls. A copy of the complaint was entered into evidence at trial.
{¶ 24} After Chitwood's testimony, appellant testified on his own behalf. Appellant admitted leaving the message on Hoffman's answering machine that was played in court. Id. at 49. Appellant recounted his reason for calling Hoffman, giving the following testimony:
{¶ 25} "Q. * * * What you're telling the Court is that you made that phone call because Lisa came to you in a distraught manner?
{¶ 26} "A. Yes.
{¶ 27} "Q. And when Lisa came to you, why did she come to you and why was she distraught?
{¶ 28} "A. Because Gary was calling (inaudible).
{¶ 29} "Q. Okay. Who is Lisa?
{¶ 30} "A. Lisa was a housekeeper (inaudible).
{¶ 31} "* * *
{¶ 32} "Q. Okay. When she came to you, were you upset with what she had indicated to you?
{¶ 33} "A. Yes.
{¶ 34} "Q. And did you feel that you needed to say something to Mr. Hoffman about his contact with your employees?
{¶ 35} "A. Yes. (inaudible) telling lies (inaudible).
{¶ 36} "Q. Okay. Did you feel that what she had indicated to you, if it was true, interfered with your business?
{¶ 37} "A. Yes.
{¶ 38} "Q. Okay. What was the purpose of you making the phone call to Mr. Hoffman?
{¶ 39} "A. (inaudible) my employees (inaudible).
{¶ 40} "Q. So the purpose of the call was to tell him don't bother the employees. That was definite.
{¶ 41} "A. Yes, yes.
{¶ 42} "Q. Okay. You wanted to also indicate to him that if he wanted to continue to work, he could do that. You would permit him to continue to work.
{¶ 43} "A. Yes.
{¶ 44} "Q. Provided he didn't bother the employees.
{¶ 45} "A. Yes." (Tr. 49-51).
{¶ 46} As previously explained, the gravamen of the offense is not how the recipient of the call interprets the call but instead the intent of the caller. Bonifas,
{¶ 47} In fact, at one point Hoffman corroborated appellant's story, stating that he found the call to be "an invitation to go back and complete [his] work" without any trouble. (Tr. 28). This is in fact the purpose appellant gave for the phone call. Appellant stated that Hoffman was harassing his employees, a fact that is supported by the Sheriff's report that was filed ten days prior to Hoffman's complaint. A third party, Chitwood, also testified regarding Hoffman's harassment. Therefore, appellant's explanation that he called to tell Hoffman that he could complete his work if he wanted, but to stop making trouble, is quite credible. More importantly, this is the notion that the actual words of the message convey.
{¶ 48} Granted, the language appellant used in the message is reprehensible. He clearly could have conveyed the purpose of his call without profanity or name calling. However, as the actual purpose of his making the call was not to use profanity and name calling, the mere inclusion of them in the message does not raise the incident to the level of telephone harassment. To hold so would essentially mean that any call placed with a legitimate purpose could somehow transform into telephone harassment by the use of profanity, an end that is not warranted by the existing statute. For the aforementioned reasons, this assignment of error is meritorious.
{¶ 49} As previously mentioned, appellant makes several more pro se arguments in addition to the manifest weight question. While these arguments are not assignments of error per se, this court will now proceed to address those arguments.
{¶ 52} Appellant also argues that a resignation letter allegedly prepared by Hoffman to be sent to appellant was also "manufactured" by appellee. This letter was mentioned in passing during the direct examination of McAtee. The letter was not, however, entered into evidence. It is not clear whether the letter was even brought into court. Moreover, as is the case with the invoice discussed above, appellant has no evidence other than his bare assertion that appellee fraudulently constructed evidence. This is simply not sufficient evidence to sustain such a grave accusation. Accordingly, appellant's second pro se argument is without merit.
{¶ 54} "* * * Since then [appellant] state's [Hoffman] has been calling the Hotel harassing him and also stops in and bothers the customers and the staff. [Appellant] states [Hoffman] is accusing him of Sexually harassing girls and stating that he owes him about 8000.00 dollars for work he has done around the Hotel. [Appellant] states [Hoffman] told him he would be back every day to harass him and that he would be the biggest trouble in his life. [Appellant] stated that [Hoffman] called into the Hotel about 50 times last night making harassing phone calls to the Staff.
{¶ 55} "I talked to Donald Chitwood, an Employee of [appellant] who stated he has talked to [Hoffman] on the phone and [Hoffman] told him that [appellant] owed him a lot of money and telling him Sexual things about [appellant] trying to get him into trouble.
{¶ 56} "I talked to Lisa Huggins who is an Employee of [appellant] who stated that [Hoffman] calls her house and states that [appellant] stole a Bull Float used for concrete work from him and that he owed him a lot of money. [Hoffman] also stated that [appellant] also told him that when she calls off work that I (sic) am lying about it, trying to cause trouble between us. (Sic).
{¶ 57} "Statements taken from all parties involved. [Appellant] states he wants charges filed and to be left alone.
{¶ 58} "I advised [appellant] a report would be sent in and that if [Hoffman] comes back to call right away and we will come and talk to him." Defense Exhibit 3.
{¶ 59} The report lists the dates of occurrence from February 13 to February 15. The report was filed on February 15, with no charges resulting from the report. The call at issue in the case sub judice is claimed to have been made on February 12. Hoffman filed a complaint regarding the message on February 25.
{¶ 60} Appellant claims that the discrepancy in the treatment of the two cases is attributable to discrimination. Appellant writes that he is "not of Caucasian decent." Additionally, as he mentions living peaceably in the United States for the past 30 years, as such one can infer that the Unites States is not his country of origin.
{¶ 61} In State v. Flynt, the Supreme Court set out the burden facing a defendant claiming to be the victim of intentionally discriminatory prosecution:
{¶ 62} "`To support a defense of selective or discriminatory prosecution, a defendant bears the heavy burden of establishing, at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government's discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights.'" State v. Flynt (1980),
{¶ 63} Seeing as how appellant failed to recognize, let alone meet, the burden facing him, he cannot prevail on mere accusations. Thus, this pro se argument is also without merit.
{¶ 65} To further support his argument, appellant points out that, in announcing the outcome of the case, the judge stated, "it is clear to the court that this was a harassing call, I think it was intended that way by Mr. Patel." Id. at 68. Appellant argues that this proves that appellee's case was not proven beyond a reasonable doubt. Appellant also finds fault with the judge in general for believing the testimony of Hoffman.
{¶ 66} Appellant argues that these incidents are clear evidence of bias on the part of the judge. However, a reviewing court will always presume an absence of bias or prejudice on the part of a trial judge. State v. Hunter,
{¶ 68} However, appellant does not provide a citation to this "rule of evidence." That is because such a rule does not exist. While Evid.R. 609(A)(3) does state that "evidence that any witness * * * has been convicted of a crime is admissible if the crime involved dishonesty or false statement," such evidence is to be admitted "[f]or the purpose of attacking the credibility of a witness." Thus, while Hoffman's convictions should have been taken into consideration when determining the credibility of his statements, it was properly presented in the record with all other testimony given. Appellant's fifth pro se argument is without merit.
{¶ 71} Appellant claims that counsel did not return his phone calls and would not schedule an appointment with him before the trial. As a result, appellant states, counsel was "completely unprepared" for the trial. While appellant may feel that there were aspects of the case counsel did not examine, it appears that counsel was prepared for trial. The prior history between appellant and Hoffman, Hoffman's admissible criminal convictions, and appellant's police report regarding Hoffman are just a few of the important matters that counsel was prepared to discuss. Appellant also claims that counsel did not prepare an opening or closing statement. However, the transcript reveals that neither side gave an opening statement, and appellant's counsel did in fact give a closing statement. Therefore, appellant's claims in these regards are incorrect, and it cannot be said that counsel fell below the reasonable standard of representation in this regard.
{¶ 72} Appellant also asserts that counsel never informed him of his constitutional rights. However, because the record does not reflect what appellant's counsel did or did not advise him about, this issue must be rejected. State v. Green,
{¶ 73} Finally, appellant argues that counsel's refusal to argue judicial bias on appeal amounts to ineffective assistance of counsel. However, as previously stated, the claim was unsupported. Therefore, it cannot be said that counsel's refusal to argue the point was below the objective standard of representation.
{¶ 74} Because appellant failed to meet the first prong required to make a case of ineffective assistance of counsel, he necessarily must fail the venture as a whole. Strickland v.Washington (1984),
{¶ 75} For the foregoing reasons, the decision of the trial court is reversed and appellant's conviction and sentence is vacated.
Donofrio and DeGenaro, JJ., concur.
