STATE OF OHIO, Plаintiff-Appellee, vs. JAMES THOMAS, Defendant-Appellant.
APPEAL NOS. C-130620, C-130621, C-130622, C-130623, C-130624
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
June 27, 2014
2014-Ohio-2803
DeWine, Judge.
Criminal Appeals From: Hamilton County Municipal Court; Judgment Appealed From Is: Affirmed; Trial Nos. 13CRB-15557 A,B, 13CRB-15808 A,B,C
Amy R. Williams, for Defendant-Appellant.
Please note: this case has been removed from the aсcelerated calendar.
OPINION.
{¶1} After his ex-girlfriend told him not to contact her, James Thomas flooded her inbox with multiple emails per day, and also left a series of “gifts” at her home in the middle of the night. His advances were unwelcome. The Hamilton County Municipal Court convicted Mr. Thomas of three counts of menacing by stalking and two counts of telecommunications harassment. On appeal, Mr. Thomas challenges the weight and sufficiency of the evidence below, and argues that his convictions constituted allied offenses and should have merged at sentencing. He further cоntends that he was denied the effective assistance of counsel, that the trial court erred by admitting evidence not disclosed during discovery, and that he was denied a fair trial based on the cumulative effect of those errors. We find his arguments to lack merit, so we affirm the trial court‘s judgment.
Unwanted Overtures
{¶2} Mr. Thоmas had been dating Nickole Davis for about a year when their relationship came to an end in the spring of 2012. In February 2013, she verbally told him not to contact her anymore, and on March 2, she responded to an email from him with the following message: “I won‘t say this again … Stop contacting me.” Dеspite her directives, Mr. Thomas continued his efforts at reconciliation by showering her with emails and leaving various “presents” outside of her home at night.
{¶3} The following are just a few of the items Mr. Thomas left at Ms. Davis‘s home throughout the month of May: a hand-carved mask, a stethoscope, an еxpandable file folder, and an empty wine bottle. On some occasions, Mr. Thomas would email her afterward to ask if she had received his gifts. By the end of May, the frequency of his emails had increased such that she received several messages from him each day. Ms.
Every night I had to doublecheck [sic] my doors, doublecheck [sic] the windows. I don‘t know how many times I would look out there and see what‘s going on in the driveway or the car. Every morning I wokе up, I know I came downstairs it would be something new, * * * and it affected me all kinds of emotionally. * * * [I]t affected my ability at work because I didn‘t know if he was going to show up while I wasn‘t there.
{¶4} On June 14, his contact escalated to the point that she involved the police. On that day, she discovered a Styrоfoam cooler sitting on her car, wrapped in aluminum foil. Because the package looked suspicious, Officer Steven Rogers summoned the bomb squad to the scene. After ensuring that the package was safe, the police opened it to find a blood pressure cuff, а psychology folder, and a cupcake. Ms. Davis also received two emails from Mr. Thomas that day—one acknowledged that he had left a present outside, saying “It‘s there,” and another contained a link to a pornographic video and asked if she wanted to “make this happen.”
{¶5} On June 15, Mr. Thomas sent Ms. Davis six emails. The first warned, “I will NOT allow you to be so ugly towards me.” The other five messages contained links to news articles with such riveting headings as “700-Pound Snake Found In North Carolina” and “Illuminati Council of 13 Human Sacrifice in Denver Colorado!” The police responded to Ms. Davis‘s hоuse a second time on June 16, after she reported having seen Mr. Thomas on her property. True to form, Mr. Thomas sent her two more messages that day, one of which alluded to him having left another gift for her.
{¶6} Mr. Thomas was charged with three counts of menacing by stalking under
Convictions are Supported by the Evidence
{¶7} In his first assignment of error, Mr. Thomas challenges the weight and sufficiency of the evidence presented in support of his convictions. Mr. Thomas was convicted of three counts of menacing by stalking, as set forth in
{¶8} Mr. Thomas contends that the statute requires proof that the victim actually suffered physical harm or mental distress. But we have held that “where mental distress is alleged under
{¶9} Next, we must consider whether the state presented sufficient evidence to prove that the defendant engaged in a “pattern of conduct” with respect to each menacing-by-stalking conviction.
{¶10} Finally, Mr. Thomas acknowledged at trial that he received the March 2 email in which Ms. Davis told him not to contact her anymore. Thus, the evidence indicated that Mr. Thomas acted knowingly, meaning that he was “aware that his conduct [would] probably cause a certain result[.]” See
{¶11} The trial cоurt also convicted Mr. Thomas of two counts of telecommunications harassment under
{¶12} Nor can we say Mr. Thomas‘s convictions were against the weight of the evidence. It was for the trial court to assess Ms. Davis‘s credibility. Moreover, Mr. Thomas admitted that he sent the emails and left the gifts at her home. Our review of the entire record fails to persuade us that the trial court clearly lost its way and created such a manifest miscarriage of justice that we must reverse Mr. Thomas‘s convictions and order a new trial. See State v. Thompkins, 78 Ohio St.3d 380, 386-87, 678 N.E.2d 541 (1997). We overrule the first assignment of error.
The Offenses are Not Allied
{¶13} Because it is closely related to his first assignment, we next address Mr. Thomas‘s fourth assignment of error, in which he arguеs that his convictions were allied offenses of similar import and should have merged under
{¶14} “[I]f the evidence adduced at trial reveals that the state relied upon the same conduct to support the two оffenses and that the offenses had been committed neither separately nor with a separate animus as to each, then the defendant is afforded the protection of
{¶15} At trial, the state never said explicitly what evidence should be applied to what offense, but we do not believe it was required to do so. The Ohio Supreme Court made clear that, when conducting a merger analysis, the trial court is not bound to the description of the defendant‘s conduct as presented by the state at trial. State v. Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, 999 N.E.2d 661. Instead, the court “must review the entire recоrd, including arguments and information presented at the sentencing hearing, to determine whether the offenses were committed separately or with a separate animus.” Id. at syllabus.
{¶16} Although there was some overlap of the facts alleged in the complaints charging the offenses, the evidence adduced at trial indicates that Mr. Thomas engaged in separate conduct toward Ms. Davis with regard to each of his five convictions. Mr. Thomas‘s conduct occurred on multiple days and at multiple times throughout each day. Thus, Mr. Thomas has not established his entitlement to protection under the merger statute, and we overrule his fourth assignment of error.
Attorneys were Not Ineffective
{¶17} In his second assignment of error, Mr. Thomas contends that two court-appointed attorneys were ineffective for failing to subpoena an alibi witness—former Cincinnati City Councilmember Cecil Thomas. Mr. Thomas maintains that he cоuld not have been at Ms. Davis‘s home on June 16 because he was celebrating Father‘s Day with Cecil Thomas, who he says is his uncle. On two occasions, the court appointed an attorney to represent Mr. Thomas, and he twice requested that the attorney be permitted to withdraw so thаt he could represent himself. After the second attorney
{¶18} To succeed on his ineffective-assistance claim, Mr. Thomas must demonstrate that counsel‘s performance was deficient, and that, absent those errors, the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989). We note that neither attorney could have subpoenaed the witness to testify at trial before the trial date had been set, so their representation was not deficient. Moreоver, Mr. Thomas‘s subsequent waiver of his right to counsel has rendered him unable to show how he was prejudiced at trial by counsel‘s allegedly deficient conduct.
{¶19} Mr. Thomas‘s real complaint is that the trial court erred by failing to rule on his pro se application to have Cecil Thomas subpоenaed as an alibi witness. When a court fails to rule on a pretrial motion, we may presume that the court overruled it. State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d 217, 223, 631 N.E.2d 150 (1994). Thus, we must determine whether the trial court erred by denying Mr. Thomas‘s request. Crim.R. 17(B) provides that a court shall subpoena an indigent defеndant‘s witness “upon a satisfactory showing that the presence of the witness is necessary to an adequate defense[.]” The motion states that Cecil Thomas would testify to Mr. Thomas‘s whereabouts on June 16. But his notice of alibi indicates that he was only with Cecil Thomas for a portion of that dаy, so the testimony would not have precluded a finding that he was at Ms. Davis‘s house before or after the time he allegedly spent with Cecil Thomas. We, therefore, conclude that the trial court did not err in overruling Mr. Thomas‘s motion, and we overrule the second assignment of error.
{¶20} In his third assignment of error, Mr. Thomas asserts that the trial court erred in failing to address alleged discovery violations. When responding to an allegation of a discovery violation, the “trial court must inquire into the circumstances surrounding a discovery rulе violation and, when deciding whether to impose a sanction, must impose the least severe sanction that is consistent with the purpose of the discovery rules.” Lakewood v. Papadelis, 32 Ohio St.3d 1, 511 N.E.2d 1138 (1987), paragraph two of the syllabus.
{¶21} Mr. Thomas discovered during trial that two emails presented by the prosecutor had not been previously disclosed. When Mr. Thomаs objected, the court inquired into the alleged violation, but elected to postpone the discussion about admissibility until the end of the state‘s presentation of evidence. Then, at the close of the state‘s case-in-chief, the court inquired of Mr. Thomas whether he wanted to address any issues with the emails. Mr. Thomas did not contest their admissibility. In addition, the two emails complained of were relatively innocuous and were cumulative of other evidence. The first, from May 24, explained that he would be getting a paycheck that day and asked Ms. Davis to celebrate with him. The second was sent on June 24, well after the complaints had been filed. We can find no prejudice in the trial court‘s decision to admit the emails into evidence, so we conclude that any error was harmless. See Crim.R. 52(A). We overrule Mr. Thomas‘s third assignment of error.
No Cumulative Error
{¶22} In his fifth assignment of error, Mr. Thomas alleges that he was denied a fair trial and his due process rights were violated because of the cumulative effect of all of the errors in the case. But since there are not multiple instances of harmless error, the
Judgment affirmed.
CUNNINGHAM, P.J., and HENDON, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.