State v. Dinka , 2015 Ohio 63 ( 2015 )

[Cite as State v. Dinka, 2015-Ohio-63.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
STATE OF OHIO, :
CASE NO. CA2014-01-002
Plaintiff-Appellee, :
OPINION
: 1/12/2014
- vs -
:
JOHN DINKA, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
Case No. 13CR29379
David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 500 Justice Drive,
Lebanon, Ohio 45036, for plaintiff-appellee
Bryan Scott Hicks, P.O. Box 359, Lebanon, Ohio 45036, for defendant-appellant
M. POWELL, J.
{¶ 1} Defendant-appellant, John Dinka, appeals from his conviction in the Warren
County Court of Common Pleas for two counts of violation of a civil protection order and one
count of menacing by stalking. For the reasons detailed below, we affirm.
{¶ 2} At the time of the charges in this case, appellant and Barbara Howard had been
together as boyfriend and girlfriend for a period of about two years and appellant had been
living in Howard's home for approximately one year. During this time, the couple had a child
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together. Appellant and Howard had a tumultuous relationship that involved numerous
incidents of physical and emotional abuse of Howard by appellant.
{¶ 3} On August 1, 2013, deputies with the Warren County Sheriff's Office were
dispatched to Howard’s residence in response to an incident of domestic violence. Howard
alleged that, while she was asleep in bed, appellant kicked her in the back and when she
confronted him, appellant got out of bed, pulled down his underpants, and attempted to
urinate in Howard's purse. Thereafter, Howard alleged that appellant would not let her leave
the house with her four-month-old child. Appellant was subsequently arrested on charges of
domestic violence.
{¶ 4} On August 6, 2013, Howard obtained a Civil Protection Order (CPO) against
appellant while he was incarcerated in the county jail. Appellant was served with the CPO
the same day and instructed that he was to have no contact with Howard. Despite the CPO,
appellant called Howard's cell phone from the county jail approximately seven times from
August 6 through August 7. Howard subsequently informed Warren County Sheriff's
Deputies that appellant was violating the terms of the CPO.
{¶ 5} On September 3, 2013, appellant was indicted on four counts, including: one
count of domestic violence in violation of R.C. 2919.25(A), two counts of violation of a
protection order in violation of R.C. 2919.27(A)(1), and one count of menacing by stalking in
violation of R.C. 2903.211(A)(1).
{¶ 6} The case proceeded to a jury trial on October 17, 2013. At the end of the two-
day trial, a jury found appellant guilty of two counts of violating a civil protection order and
one count of menacing by stalking. The jury found appellant not guilty of domestic violence.
The trial court sentenced appellant to 12 months in prison. Appellant now appeals, raising
two assignments of error for review.
{¶ 7} Assignment of Error No. 1:
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{¶ 8} THE DEFENDANT WAS IMPROPERLY CONVICTED OF VIOLATING A
PROTECTION ORDER.
{¶ 9} In his first assignment of error, appellant claims that his conviction for violating
a protection order was improper. We construe appellant's first assignment of error as a
challenge to the sufficiency of the evidence, as well as an argument that his conviction is
against the manifest weight of the evidence.
{¶ 10} The legal concepts of sufficiency of the evidence and weight of the evidence
are separate and distinct. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). "In reviewing
the sufficiency of the evidence underlying a criminal conviction, an appellate court examines
the evidence in order to determine whether such evidence, if believed, would support a
conviction." State v. Boles, 12th Dist. Brown No. CA2012-06-012, 2013-Ohio-5202, ¶ 34.
Accordingly, 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. Henry, 12th Dist. Clermont Nos.
CA2013-12-095 and CA2013-12-097, 2014-Ohio-4624, ¶ 16.
{¶ 11} On the other hand, "a manifest weight challenge concerns the inclination of the
greater amount of credible evidence, offered in a trial, to support one side of the issue rather
than the other." State v. Johnson, 12th Dist. Fayette No. CA2013-04-012, 2014-Ohio-1694, ¶
19. In determining whether a conviction is against the manifest weight of the evidence, the
court, reviewing the entire record, weighs the evidence and all reasonable inferences,
considers the credibility of witnesses, and determines whether in resolving conflicts in the
evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of
justice that the conviction must be reversed and a new trial ordered. State v. Birt, 12th Dist.
Butler No. CA2012-02-031, 2013-Ohio-1379, ¶ 17. A unanimous concurrence of all three
judges on the court of appeals panel reviewing the case is required to reverse a judgment on
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the weight of the evidence in a jury trial. Johnson at ¶ 19.
{¶ 12} Because sufficiency is required to take a case to the jury, a finding that a
conviction is supported by the weight of the evidence must necessarily include a finding of
sufficiency. State v. English, 12th Dist. Butler No. CA2013-03-048, 2014-Ohio-441, ¶ 66.
Thus, a determination that a conviction is supported by the weight of the evidence will also be
dispositive of the issue of sufficiency. Id.{¶ 13} R.C. 2919.27(A)(1) provides that "[n]o person shall recklessly violate the terms
of * * * [a] protection order issued * * * pursuant to section * * * 2919.26 or 3113.31 of the
Revised Code." In the present case, the CPO issued against appellant and in favor of
Howard was introduced into evidence at trial. That CPO included a provision which
prohibited appellant from initiating contact with Howard. Specifically, the pertinent provision
of the CPO provides:
DEFENDANT SHALL NOT INITIATE OR HAVE CONTACT with
the protected persons named in this Order or their residences,
businesses, places of employment, schools, day care centers, or
child care providers. Contact includes, but is not limited to,
telephone, fax, e-mail, voice mail, delivery service, writings, or
communications by any means in person or through another
person. Defendant may not violate this order even with the
permission of a protected person.
{¶ 14} On appeal, appellant does not dispute the fact that he made approximately
seven phone calls to Howard following the issuance of the CPO on August 6 and August 7.
Instead, appellant argues that his conduct did not violate the conditions of the CPO because
Howard did not accept the phone calls. In essence, appellant contends that he did not
violate the terms of the CPO because he did not actually "communicate" with Howard.
{¶ 15} After reviewing the record, we find appellant's conviction was not against the
weight of the evidence and was therefore supported by sufficient evidence. Appellant's
arguments to the contrary are without merit. The CPO at issue prohibits appellant from
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contacting or initiating contact with Howard. Appellant's repeated attempts to telephone
Howard clearly satisfies the fact that appellant was initiating contact. See, e.g., State v.
Leason, 9th Dist. Summit No. 25566, 2011-Ohio-6591, ¶ 28 (defendant attempted to initiate
contact with the protected party from a jailhouse phone). As such, the state presented
sufficient evidence from which the trier of fact could reasonably conclude that appellant was
guilty of violating a protection order. Accordingly, appellant's first assignment of error is
without merit.
{¶ 16} Assignment of Error No. 2:
{¶ 17} THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE
{¶ 18} In his second assignment of error, appellant argues that his conviction for
menacing by stalking was against the manifest weight of the evidence.
{¶ 19} In the present case, appellant was convicted of menacing by stalking, a fourth-
degree felony. Menacing by stalking is defined under R.C. 2903.211(A)(1), which provides,
in pertinent part:
No person by engaging in a pattern of conduct shall knowingly
cause another person to believe that the offender will cause
physical harm to the other person or cause mental distress to the
other person.
Menacing by stalking is a fourth degree felony when "[t]he offender has a history of violence
toward the victim or any other person or a history of other violent acts toward the victim or
any other person."
{¶ 20} In prosecutions for menacing by stalking, the victim's belief that the defendant
will cause physical harm is an element of the offense which is often intertwined with their past
interactions. State v. Hart, 12th Dist. Warren No. CA2008-06-079, 2009-Ohio-997, ¶ 12. As
a result, prior acts of violence between the defendant and the victim are "relevant and highly
probative in establishing the victim's belief of impending serious harm," and are "particularly
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important to prove the crime of menacing by stalking." Id., citing State v. Horsley, 10th Dist.
Franklin No. 05AP-350, 2006-Ohio-1208, ¶ 26.
{¶ 21} During trial, the state elicited testimony from Howard regarding several
instances of appellant's prior violent acts and inappropriate conduct, including a prior
conviction for domestic violence in 2013. The conviction stemmed from a January 9, 2013
incident between appellant and Howard's daughter, Shelby Howard, where appellant
threatened Shelby and her boyfriend with a shotgun.
{¶ 22} However, following appellant's trial and conviction for the charges involved in
the present case, this court reversed appellant's 2013 domestic violence conviction on the
basis that appellant was denied his right to counsel. We remanded the matter for further
proceedings where appellant "must be afforded a new trial wherein he is to be represented
by counsel, unless he makes a knowing and voluntary waiver thereof." State v. Dinka, 12th
Dist. Warren No. CA2013-03-021, 2013-Ohio-4646, ¶ 28-29.
{¶ 23} Based on that reversal, appellant now contends that his conviction for
menacing by stalking is against the manifest weight of the evidence because the evidence of
his 2013 domestic violence conviction was "by far the most serious and frightening" and
caused the jury to lose its way in determining guilt.
{¶ 24} After review, we find no merit to appellant's argument. First, the menacing by
stalking statute does not require that the pattern of conduct consist of convictions. Rather,
the statute emphasizes prior acts indicating a pattern of violent conduct. As this court has
previously observed, even "otherwise innocent appearing acts, when put into the context of
previous contacts * * * may be knowing attempts to cause mental distress." Horsley, 2006-
Ohio-1208 at ¶ 26; State v. Bradford, 12th Dist. Warren No. CA2010-04-032, 2010-Ohio-
6429, ¶ 23 ("state need only show that a defendant knowingly caused the victim to believe
that he would cause her mental distress or physical harm.") Accordingly, there is no
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evidence that the acts involved in the 2013 domestic violence conviction would be excluded
even though appellant's actual conviction was overturned. In addition, we also note that
appellant's 2013 conviction for domestic violence was not reversed on the basis that the
evidence against appellant was insufficient or against the manifest weight of the evidence.
Instead, this court reversed appellant's conviction based on a procedural irregularity. In other
words, this court's reversal was not akin to a finding that appellant did not engage in the
violent conduct and therefore appellant has not demonstrated any prejudice.
{¶ 25} Moreover, appellant's 2013 conviction for domestic violence was only one of
several instances that Howard testified about that established a pattern of violent conduct.
Other evidence in the record established appellant's violent history and abusive tendencies.
Specifically, Howard testified that appellant had broken mirrors in her bathroom vanity, he
had kicked and broken Howard's kitchen cabinet, damaged a bedroom door by throwing a
television remote, dumped cans of soda on Howard's head, and surreptitiously placed raw
chicken livers on the engine of Howard's automobile following an argument.
{¶ 26} Howard further explained that on one occasion, appellant became enraged with
Howard after he discovered that someone had eaten his Fruity Pebbles cereal. After learning
that the Fruity Pebbles cereal was gone, Howard stated that appellant threw his cereal bowl
causing the bowl to shatter. Thereafter, Howard left the room and called appellant a
"psycho." Not wanting to end the argument there, appellant said "I'll show you psycho" and
took a box cutter and began cutting large slices into the carpet in the living room.
Photographs of the destroyed carpet were entered as exhibits in the record.
{¶ 27} Based on the evidence presented at trial, we conclude the jury's verdict was not
against the manifest weight of the evidence. This case came down to the credibility of the
witness testimonies. Although appellant denied any wrongdoing and attempted to minimize
his prior violent acts, the state presented overwhelming evidence to the contrary. The jury,
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as trier of fact, was in the best position to judge the credibility of the witnesses. The evidence
produced at trial indicates that a rational jury could have found beyond a reasonable doubt
that appellant knowingly caused Howard to believe that he would cause her physical harm or
mental distress. As such, appellant's second assignment of error is without merit.
{¶ 28} Judgment affirmed.
HENDRICKSON, P.J., and S. POWELL, J., concur.
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