State v. Szykulski , 2021 Ohio 2733 ( 2021 )

[Cite as State v. Szykulski, 2021-Ohio-2733.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
No. 19AP-639
Plaintiff-Appellee, : (M.C. No. 2018-CRB-020121)
&
v. : No. 19AP-640
(M.C. No. 2018-CRB-015690)
William T. Szykulski, :
(REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on August 10, 2021
On brief: Zachary M. Klein, City Attorney, Melanie R.
Tobias, and Stephen J. Steinberg, for appellee. Argued:
Stephen J. Steinberg.
On brief: Jeffrey M. Blosser, for appellant. Argued:
William T. Szykulski, pro se.
APPEALS from the Franklin County Municipal Court
LUPER SCHUSTER, J.
{¶ 1} Defendant-appellant, William T. Szykulski, appeals from two judgment
entries of the Franklin County Municipal Court finding him guilty of separate counts of
violating a protection order. For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} By complaint filed July 31, 2018, plaintiff-appellee, State of Ohio, charged
Szykulski with one count of violating a civil stalking protection order in violation of R.C.
2919.27, a first-degree misdemeanor. The charge related to an allegation that Szykulski
violated a valid protection order by placing a card on the windshield of his former girlfriend,
E.E.B. Subsequently, the state charged Szykulski with a second count of violating a civil
protection order in violation of R.C. 2919.27, again as a first-degree misdemeanor. The
Nos. 19AP-639 and 19AP-640 2
second charge related to an allegation that Szykulski violated a valid protection order by
sending an email to one of E.E.B.'s co-workers. Szykulski entered a plea of not guilty and
requested a jury trial.
{¶ 3} At the August 2019 trial on both counts, E.E.B. testified that she met
Szykulski in July 2016 while she was living in Minnesota and Szykulski lived in Columbus.
The two began a long-distance relationship, and E.E.B. testified she moved to Columbus in
November 2016 to live with Szykulski. In October 2017, E.E.B. ended her relationship with
Szykulski, and E.E.B. testified that it was a "bad" break-up in which she called the police to
report Szykulski for domestic violence. (Tr. at 137.)
{¶ 4} Despite ending the relationship in October 2017, E.E.B. testified she did not
move out of their shared residence until December 2017. Upon moving, E.E.B. said she did
not give Szykulski her new address and made it clear that she did not want any contact with
him. However, E.E.B. said Szykulski continued to contact her by phone, email, social
media, and through other people. This behavior, E.E.B. testified, caused her to block
Szykulski's phone numbers, email address, and social media accounts; nonetheless, E.E.B.
said Szykulski continued to contact her.
{¶ 5} In May 2018, E.E.B. obtained a temporary civil stalking protection order
against Szykulski, and the state introduced a copy of the temporary protection order at trial.
The protection order prohibited Szykulski from contacting E.E.B. or her employer in any
manner. When service of the temporary protection order was perfected upon Szykulski on
May 22, 2018, the temporary order listed E.E.B.'s new address despite her request to have
her address redacted.
{¶ 6} The temporary order was in effect in July 2018. E.E.B. testified that early in
the morning on July 31, 2018, she saw a card inside an envelope on her car's windshield.
When she arrived at work, E.E.B. said she looked at the card and noticed it was a card she
had sent to Szykulski in August 2016, noting that it was written in her handwriting and was
addressed to Szykulski's Columbus address. E.E.B. testified the card also had a postmark
from St. Paul, Minnesota dated August 12, 2016, and the return address was E.E.B.'s former
Minnesota address. Additionally, E.E.B. testified that after she mailed the card to
Szykulski, she never retook possession of it. The state introduced both the card and the
envelope as evidence at trial.
Nos. 19AP-639 and 19AP-640 3
{¶ 7} After realizing the card on her car windshield was from Szykulski, E.E.B. said
she contacted her attorney who advised her to call the police. However, E.E.B. testified that
she did not want to call the police because, having called them twice before to report
Szykulski 's behavior, she believed they would not file charges against Szykulski and would
only talk to Szykulski and warn him about his behavior. Additionally, E.E.B. said she was
afraid of how Szykulski might react if she called the police. After discussing the matter with
her attorney, however, her attorney insisted that E.E.B. call the police, and E.E.B.
eventually agreed.
{¶ 8} Two officers with the Columbus Police Department responded to E.E.B.'s call.
Officers Joshua Cramer and Deann Trionfante both testified that E.E.B. was shaking and
crying when she described finding the card and her concerns about Szykulski. E.E.B.
provided a copy of the protection order to the officers, and she gave the card and its
envelope to the officers who, after their conversation with E.E.B., decided to arrest
Szykulski for violating a protection order. The officers testified that they radioed for
another officer to arrest Szykulski at his home.
{¶ 9} The state also presented the testimony of Benton Alleman, E.E.B.'s
supervisor at her place of employment, the Title Boxing Club. Alleman testified he knew
that E.E.B. had a protection order against Szykulski and that the gym had a copy of the
protection order. Pursuant to his testimony, Alleman stated that he received an email on
July 22, 2018 from Szykulski but did not open the email until a few days later. Alleman
said he knew the email was from Szykulski because the sender's address was Szykulski's
name. Additionally, E.E.B. identified the sender's email address as belonging to Szykulski.
{¶ 10} The email, which the state introduced as evidence at trial, stated:
From: "William Szykulski"
Sent: Sunday, July 22, 2018 7:1opm
To: [ ]@titleboxingclub.com
Subject: [E.E.B.]'s filing as a petitioner
Benton,
First, I want to start off by saying thank you for being a good
guy and a friend. I stayed loyal under your family's franchise
for many years for numerous reasons. It was worth losing my
original contract where I could go to any gym once Maria
Manzo bought out the rights.
Nos. 19AP-639 and 19AP-640 4
Second, I have attached the small fraction line of questioning
for the next court date August 30. I did not intend anyone from
your club or any members to be involved. [E.E.B.] had no
witnesses at the first hearing. That changed once Abe was
willing to come testify, then this opened up the doors. I have
respect for your family's franchise so I attached a small
sampling.
Third, this entire court situation is full of hard emotions. I still
love [E.E.B.]. I messed up in many ways. I pushed her away
and now I am getting what I asked for. I am a fool and realized
within two weeks how much [E.E.B.] meant to me. She is the
best woman to ever to be [a part] of my life. She has every right
to feel safe in a city where she has no family and a [handful] of
friends. I harbor no negative feelings that she filed against me.
That being said, after all the evidence has been exchanged,
nothing points to me. I hope she can see one day I have done
nothing to harm her car. Please do not place any judgments on
her. While I am frustrated she thinks I would harm her in any
way, she should feel safe no matter where she goes.
Best Wishes,
William
(State's Ex. F.)
{¶ 11} Alleman forwarded the email to another trainer at the gym, Abe Javadi, on
August 9, 2018. Javadi testified that he had known E.E.B. and Szykulski when they were
dating, that their break-up did not go well, and that E.E.B. had obtained a protection order
against Szykulski. Javadi said he put the copy of the protection order on file at the gym and
told other people about it. After receiving the forwarded email from Alleman, Javadi said
he forwarded it to E.E.B. E.E.B. then forwarded the email to her attorney and to the
prosecutor's office. Upon receiving the email, the prosecutor's office authorized a second
charge of violating a protection order be filed against Szykulski.
{¶ 12} Following deliberations, the jury found Szykulski guilty of both counts of
violating a civil protection order. The trial court sentenced Szykulski to 180 days in jail with
175 days suspended plus 2 days jail-time credit on the first complaint and 180 days in jail
with 177 days suspended on the second complaint, ordering the sentences to run
consecutively for an aggregate sentence of 6 days in jail. The trial court journalized his
conviction and sentence in two August 19, 2019 sentencing entries. Szykulski timely
appeals.
Nos. 19AP-639 and 19AP-640 5
II. Assignments of Error
{¶ 13} Szykulski assigns the following errors for our review:
[1.] Mr. Szykulski's conviction for Violation a Civil Stalking
Protection Order by allegedly placing a card on a vehicle owned
by the person protected by the Civil Stalking Protection Order
is not supported by sufficient evidence.
[2.] Mr. Szykulski's conviction for Violating a Civil Stalking
Protection Order for allegedly sending an email to the employer
of the person protected by the Civil Stalking Protection Order
is not supported by sufficient evidence.
[3.] Mr. Szykulski's conviction for Violating a Civil Stalking
Protection Order by allegedly placing a card on the vehicle
owned by the person protected by the Civil Stalking Protection
Order is not supported by sufficient evidence.
[4.] Mr. Szykulski's conviction for Violating a Civil Stalking
Protection Order for allegedly sending an email to the employer
of the person protected by the Civil Stalking Protection Order
is against the manifest weight of the evidence.
III. First and Second Assignments of Error – Sufficiency of the Evidence
{¶ 14} Szykulski's first and second assignments of error are interrelated, and we
address them jointly. In his first assignment of error, Szykulski argues there was
insufficient evidence to support his conviction of violating a protection order related to
placing the card on the car windshield. In his second assignment of error, Szykulski argues
there was insufficient evidence to support his conviction of violating a protection order
related to sending an email to E.E.B.'s boss. Taken together, Szykulski's first and second
assignments of error assert there was insufficient evidence to support his convictions.
{¶ 15} Whether there is legally sufficient evidence to sustain a verdict is a question
of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Sufficiency is a test of adequacy.
Id. The relevant inquiry for an appellate court is whether the evidence presented, when
viewed in a light most favorable to the prosecution, would allow any rational trier of fact to
find the essential elements of the crime proven beyond a reasonable doubt. State v.
Mahone, 10th Dist. No. 12AP-545, 2014-Ohio-1251, ¶ 38, citing State v. Tenace, 109 Ohio
St.3d 255, 2006-Ohio-2417, ¶ 37.
Nos. 19AP-639 and 19AP-640 6
{¶ 16} Szykulski argues the state presented insufficient evidence to sustain his
conviction of two counts of violating a protection order. Pursuant to R.C. 2919.27, "[n]o
person shall recklessly violate the terms of * * * [a] protection order issued pursuant to
section 2151.34, 2903.213, or 2903.214 of the Revised Code." R.C. 2919.27(A)(2). See also
State v. Partlow, 10th Dist. No. 12AP-459, 2013-Ohio-2771, ¶ 19. Further, "[a] person acts
recklessly when, with heedless indifference to the consequences, the person disregards a
substantial and unjustifiable risk that the person's conduct is likely to cause a certain result
or is likely to be of a certain nature. A person is reckless with respect to circumstances
when, with heedless indifference to the consequences, the person disregards a substantial
and unjustifiable risk that such circumstances are likely to exist." R.C. 2901.22(C).
{¶ 17} At trial, the state introduced the May 16, 2018 protection order issued
pursuant to R.C. 2903.214. The terms of the protection order against Szykulski prohibited
him from being within 500 feet of E.E.B. and from contacting E.E.B. or her employer.
Szykulski does not dispute that there was a valid civil stalking protection order issued
against him or that placing the card on the car windshield or sending the email would
violate the terms of the protection order. Instead, Szykulski argues the state did not present
any credible evidence to prove (1) that the card was, indeed, placed on E.E.B.'s windshield,
(2) that even if the card was there, that Szykulski was the one who placed it there, or (3) that
Szykulski was the author and sender of the email to E.E.B.'s boss.
{¶ 18} Szykulski argues through these assignments of error that because the state
did not introduce any photographs of the card on the windshield, any surveillance footage
showing Szykulski placing the card on the windshield, or any electronic forensic evidence
demonstrating Szykulski was, indeed, the author of and sender of the email, the state
therefore failed to present evidence of all the essential elements of the offenses. Stated
another way, Szykulski's argument is that there was insufficient evidence to support his
convictions because the state relied on circumstantial, rather than direct, evidence.
{¶ 19} "Circumstantial evidence is the 'proof of facts by direct evidence from which
the trier of fact may infer or derive by reasoning other facts in accordance with the common
experience of mankind.' " (Internal quotations omitted.) State v. Robinson, 10th Dist. No.
17AP-5, 2018-Ohio-1809, ¶ 20, quoting State v. Griesheimer, 10th Dist. No. 05AP-1039,
2007-Ohio-837, ¶ 26. Circumstantial evidence has the same probative value as direct
Nos. 19AP-639 and 19AP-640 7
evidence. Robinson at ¶ 20; State v. Teitelbaum, 10th Dist. No. 14AP-310, 2016-Ohio-3524,
¶ 120. " '[C]ircumstantial evidence is sufficient to sustain a conviction if that evidence
would convince the average mind of the defendant's guilt beyond a reasonable doubt.' "
Robinson at ¶ 20, quoting State v. Heinish, 50 Ohio St.3d 231, 238 (1990).
{¶ 20} As Szykulski notes, the majority of the state's case against him relies on
E.E.B.'s testimony. Szykulski asserts E.E.B.'s testimony is insufficient to sustain his
conviction because she lacks credibility. However, " 'in a sufficiency of the evidence review,
an appellate court does not engage in a determination of witness credibility; rather, it
essentially assumes the state's witnesses testified truthfully and determines if that
testimony satisfies each element of the crime.' " State v. Connally, 10th Dist. No. 16AP-53,
2016-Ohio-7573, ¶ 38, quoting State v. Bankston, 10th Dist. No. 08AP-668, 2009-Ohio-
754, ¶ 4. E.E.B. testified at trial that only Szykulski had possession of the card prior to her
finding it on her windshield and that she never retook possession of the card after mailing
it to Szykulski. Further, the email address was comprised of Szykulski's first initial and last
name, the sender identification on the email listed Szykulski's name, the email contents
related to Szykulski's personal life, and E.E.B., having previously exchanged emails with
Szykulski, identified the email address as belonging to Szykulski. From that evidence, a
jury could reasonably conclude it was Szykulski who both placed the card on the car
windshield and who wrote and sent the email to E.E.B.'s employer. Thus, the state
presented sufficient evidence that Szykulski violated a protection order by placing the card
on E.E.B.'s windshield and by emailing her employer. We will address Szykulski's
argument regarding the credibility of the witnesses in our analysis of the manifest weight
of the evidence.
{¶ 21} As there was sufficient evidence to sustain both of Szykulski's convictions of
violating a protection order, we overrule his first and second assignments of error.
IV. Third and Fourth Assignments of Error – Manifest Weight of the Evidence
{¶ 22} Szykulski's third and fourth assignments of error are interrelated, and we
address them jointly. In his third assignment of error, Szykulski argues that his conviction
of violating a protection order related to placing a card on the car windshield is against the
manifest weight of the evidence. In his fourth and final assignment of error, Szykulski
argues that his conviction of violating a protection order related to sending an email to
Nos. 19AP-639 and 19AP-640 8
E.E.B.'s supervisor is against the manifest weight of the evidence. Taken together,
Szykulski's third and fourth assignments of error assert his convictions are against the
manifest weight of the evidence.
{¶ 23} When presented with a manifest weight argument, an appellate court
engages in a limited reweighing of the evidence to determine whether sufficient competent,
credible evidence supports the jury's verdict. State v. Salinas, 10th Dist. No. 09AP-1201,
2010-Ohio-4738, ¶ 32, citing Thompkins at 387. "When a court of appeals reverses a
judgment of a trial court on the basis that the verdict is against the weight of the evidence,
the appellate court sits as a 'thirteenth juror' and disagrees with the factfinder's resolution
of the conflicting testimony." Thompkins at 387, quoting Tibbs v. Florida, 457 U.S. 31, 42
(1982). Determinations of credibility and weight of the testimony are primarily for the trier
of fact. State v. DeHass, 10 Ohio St.3d 230 (1967), paragraph one of the syllabus. Thus,
the jury may take note of the inconsistencies and resolve them accordingly, "believ[ing] all,
part, or none of a witness's testimony." State v. Raver, 10th Dist. No. 02AP-604, 2003-
Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67 (1964).
{¶ 24} An appellate court considering a manifest weight challenge "may not merely
substitute its view for that of the trier of fact, but must review the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of witnesses, and determine
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. Harris, 10th Dist. No. 13AP-770, 2014-Ohio-2501, ¶ 22, citing
Thompkins at 387. Appellate courts should reverse a conviction as being against the
manifest weight of the evidence only in the most " 'exceptional case in which the evidence
weighs heavily against the conviction.' " Thompkins at 387, quoting State v. Martin, 20
Ohio App.3d 172, 175 (1st Dist.1983).
{¶ 25} Szykulski argues his convictions are against the manifest weight of the
evidence because the jury clearly lost its way in believing E.E.B.'s testimony. However, a
conviction is not against the manifest weight of the evidence because the trier of fact
believed the state's version of events over the defendant's version. State v. Lindsey, 10th
Dist. No. 14AP-751, 2015-Ohio-2169, ¶ 43, citing State v. Gale, 10th Dist. No. 05AP-708,
2006-Ohio-1523, ¶ 19. As we noted above, the trier of fact remains free to believe "all, part,
Nos. 19AP-639 and 19AP-640 9
or none of a witness's testimony." Raver at ¶ 21. Though Szykulski argues it is possible that
E.E.B., herself, placed the card on the windshield to wrongly accuse him of violating the
protection order, E.E.B. testified that she found the card on her car windshield early in the
morning when she was leaving for work and that the card had not been in her possession
since she originally mailed it to Szykulski. Szykulski does not point to any inconsistencies
in E.E.B.'s testimony or statements to police; rather, he merely suggests E.E.B. had the
motive and opportunity to concoct a false story. However, having reviewed the record in
its entirety, we do not find the jury clearly lost its way in finding E.E.B.'s testimony to be
credible.
{¶ 26} Further, to the extent Szykulski argues his convictions are against the
manifest weight of the evidence due to the lack of physical or forensic evidence connecting
him to placing the card on the windshield or to sending the email, this court has repeatedly
stated that " '[a] lack of physical evidence, standing alone, does not render [a defendant's]
conviction against the manifest weight of the evidence.' " State v. Murray, 10th Dist. No.
16AP-16, 2017-Ohio-949, ¶ 38, quoting State v. Peeples, 10th Dist. No. 13AP-1026, 2014-
Ohio-4064, ¶ 21, citing State v. Conner, 10th Dist. No. 12AP-698, 2013-Ohio-2773, ¶ 12.
" 'If [witness] testimony is believed then the lack of fingerprints, DNA, footprints or any
other [type of] physical evidence does not render the conviction against the manifest weight
of the evidence.' " Peeples at ¶ 21, quoting State v. Jackson, 7th Dist. No. 09 JE 13, 2009-
Ohio-6407, ¶ 16 (concluding a conviction based on victim's testimony identifying the
defendant was not against the manifest weight of the evidence). As we stated above, E.E.B.
provided credible testimony that Szykulski was the last person in possession of the card
before it appeared on her windshield and that the email address linked to the email
belonged to Szykulski.
{¶ 27} Thus, in light of the evidence discussed above, as well as the record in its
entirety, we do not find the jury clearly lost its way in concluding the state proved that
Szykulski violated the terms of the protection order both by placing the card on E.E.B.'s car
windshield and by sending the email to her employer. We conclude, therefore, that the
manifest weight of the evidence supports Szykulski's convictions of violating a protection
order. Accordingly, we overrule Szykulski's third and fourth assignments of error.
Nos. 19AP-639 and 19AP-640 10
V. Disposition
{¶ 28} Based on the foregoing reasons, the sufficiency and manifest weight of the
evidence support Szykulski's convictions of violating a protection order. Having overruled
Szykulski's four assignments of error, we affirm the judgments of the Franklin County
Municipal Court.
Judgments affirmed.
BROWN and BEATTY BLUNT, JJ., concur.