State v. Hunter , 2013 Ohio 1469 ( 2013 )

[Cite as State v. Hunter, 2013-Ohio-1469.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 24844
Plaintiff-Appellee :
: Trial Court Case No. 11-CRB-194
v. :
:
CYNTHIA D. HUNTER : (Criminal Appeal from Montgomery
: (County Municipal Court - Western
Defendant-Appellant : (Division)
:
:
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OPINION
Rendered on the 12th day of April, 2013.
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RAYMOND J. DUNDES, Atty. Reg. #0041515, City of Trotwood Prosecutor’s Office, 7 South
Mechanic Street, Lebanon, Ohio 45036
Attorney for Plaintiff-Appellee
ANGELA WILSON MILLER, Atty. Reg. #0064902, 322 Leeward Drive, Jupiter, Florida 33477
Attorney for Defendant-Appellant
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FAIN, P.J.
{¶ 1} Defendant-appellant Cynthia Hunter appeals from her conviction for Violating
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a Protection Order, for which she was sentenced to one hundred eighty days in jail, all of which
was suspended. She was also fined $100 and placed on non-reporting community control for a
period of three years. Hunter’s initial appellate counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that after reviewing the
record and the applicable law, she found no potentially meritorious issues for appeal. Counsel
set forth one potential assignment of error, which counsel concluded is frivolous: that the
conviction is against the manifest weight of the evidence.
{¶ 2} Upon exercising our duty of independent review, we found a potential
assignment of error having arguable merit, based upon a misstatement by the trial court of the
applicable burden of proof. The trial court was the finder of fact in Hunter’s bench trial. We
also noted that the trial court, in its sentencing entry mistakenly recited that Hunter had pled
guilty to the offense. Accordingly, we rejected the Anders brief, and caused new counsel to be
assigned.
{¶ 3} Newly assigned counsel has not set forth an assignment of error based upon the
trial court’s misstatement of the applicable burden of proof – understandably so, since the trial
court has now corrected the record to reflect that it did, in fact, employ the correct burden of
proof, and that Hunter did not plead guilty, but was, in fact, convicted after a bench trial. But
newly assigned counsel has set forth two assignments of error for our consideration.
I. The Protection Order and its Alleged Violation
{¶ 4} In February 2011, M.C. was granted an ex parte protection order against
Hunter. Of relevance hereto, the protection order states:
[Cite as State v. Hunter, 2013-Ohio-1469.]
RESPONDENT SHALL STAY AWAY FROM protected persons named
in this Order, and shall not be present within 500 feet of any protected persons
wherever those protected persons may be found, or any place the Respondent
knows or should know the protected persons are likely to be, even with the
protected persons’ permission. If Respondent accidentally comes in contact
with protected persons in any public or private place, Respondent must depart
immediately. This Order includes encounters on public and private roads,
highways, and thoroughfares. (Emphasis sic.).
{¶ 5} M.C. and her parents, Marquette and Michael Curington, are protected persons
under the terms of the Order. Hunter was properly served with notice of the protection order.
{¶ 6} Three days after the issuance of the ex parte protection order, after Hunter had
been served with it, Hunter was in her vehicle within 500 feet of the Curington residence. She
was arrested and charged with one count of Violating a Protection Order in violation of R.C.
2912.27.
{¶ 7} At trial, the following evidence was presented by the State. Michael Curington
was in his garage when he saw a red truck pull into his driveway. He testified that he recognized
the car as Hunter’s, so he ran into the house and grabbed his camera. He then ran back out and
took pictures as Hunter drove away. He testified that he then got in his car to follow her, and
that he then caught up with her and took more pictures. The pictures were admitted in evidence.
{¶ 8} Glyndon Wilson also testified for the State. She indicated that she lives next
door to the Curingtons, and that she was home on the evening in question. She testified that her
granddaughter was home with her. Wilson testified that she “usually” leaves her porch light on,
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and that she turns it on “early.” She also testified that the porch light was on that evening.
Wilson testified that she knows Hunter because Hunter’s daughter has spent the night at her
house with Wilson’s granddaughter. She denied ever babysitting Hunter’s children. Wilson
testified that she had no knowledge that Hunter intended to come to her house on the evening in
question, and had not talked to her about doing so. Wilson also testified that shortly thereafter,
Hunter called her and said that she wanted Wilson to sign a note “stating that [Wilson] was her
daughter’s babysitter.” Wilson testified that she declined to do so because she did not babysit
the child.
{¶ 9} The State presented the testimony of Trotwood Police Officer Brian Douglas who
testified that he was on duty that evening, when he responded to a call from Hunter stating that
she was in her vehicle being followed by another vehicle. He testified that Hunter said there was
a protection order in place, and that “there was one being ordered on both ends.” He testified
that Hunter said that she had gone to Wilson’s residence, but that she left when she saw no lights
on at the home. He testified that Hunter said that a car began following her as she left, and that
she saw the person in the car taking photographs of her vehicle. A certified copy of the
protection order was admitted into evidence.
{¶ 10} Hunter testified on her own behalf. She testified that there was an ongoing
dispute between her daughter and the Curingtons’ daughter, M.C. She testified that she was at
school when she “received a call from my daughter and Ms. Wilson’s granddaughter saying that
the Curingtons was [sic] harassing and threatening them.” She testified that, because she was
crying and afraid, she left school and picked up her sister. She testified that when she arrived at
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Wilson’s home, Wilson “met [her] at the car and [said that the] kids next door have been
harassing and calling these kids all day. And I will not let them go outside because I’m afraid of
them.” Hunter testified that she then asked Wilson to keep the girls inside next weekend while
Hunter was in school. She testified that the next weekend she picked up her daughter, and
Wilson told her that she had kept her house alarm on because she was “sick” of the kids next
door, who continued to harass Hunter’s daughter and Wilson’s granddaughter.
{¶ 11} Hunter testified that three days before the protection order was issued, she, her
daughter, and another woman were grocery shopping when they were accosted by M.C. and
another woman whom she did not know. She testified that the other woman threatened Hunter,
and identified M.C. as her “little sister.” Hunter testified that M.C. then used her cellular
telephone to call her mother. Hunter testified that as she was loading her groceries into her car,
“four carloads of people pull up.” She testified that the people included the Curingtons, “the
grandmamma, an auntie, a cousin, some sisters, some friends. It’s just like four cars – a gang
load of people.” She testified that Mr. Curington got out of the car and began speaking in a
threatening tone when the police arrived. She testified that the officers advised her to get a
protection order, but she did not.
{¶ 12} Hunter testified that on the day of the alleged violation, her daughter advised her
to go talk to Ms. Wilson. Hunter stated that she decided to call Wilson first, but that no one
answered the telephone. Hunter testified that “on that night, I – against my – I don’t know what
I was thinking, just trying to save – or at least get a witness statement or something from – to take
to court because I had to go to court [on the protection order hearing] two days from then.” She
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testified that she took her daughter and a “man” with her to Wilson’s home, but that she drove on
when she saw that no lights were on. She testified that she had never gone all the way down that
street before, so she was unaware that it was a dead end. She testified that she performed a
U-turn at the end of the street, and was almost back to Wilson’s house, when she saw a man
chasing her car on foot and taking pictures. Hunter testified that the man got into his car,
followed her, and bumped into her vehicle. She then called the police, and was advised to get to
the police station. Hunter denied stopping in the Curington driveway.
{¶ 13} On cross-examination, Hunter testified that she knew where the Curingtons lived,
and that she knew there was a protection order prohibiting her from coming within 500 feet of the
Curingtons. She testified that she did not go into the Curington driveway, and that she was
never within 500 feet of their home. She testified that she had been going over there for “four
weeks in a row because Ms. Wilson was babysitting my daughter [who] would spend the night
there.” Hunter testified that Wilson has “dementia or something,” because she did babysit
Hunter’s child for “three weekends in a row.” Then she testified that Wilson was the babysitter,
because she was the only adult present in Wilson’s home when Hunter’s daughter spent the night.
{¶ 14} Hunter’s daughter, T.B., testified that she and her mother were going to Wilson’s
home on the day of the alleged violation in order to get a statement regarding the protection
order. She testified that as they drove past Wilson’s home they observed no lights on. She
testified that they drove past the home, turned around and then Mr. Curington began to chase
them. On cross-examination, she testified that it was her idea to get a statement from Wilson,
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but that her mother told her that she could not go there, because she could go to jail. T.B.
testified that she had called the Wilsons, and no one answered, but they decided to go anyway.
{¶ 15} When asked how far their vehicle was from the Curington home, the prosecutor
identified the wall behind T.B. as the Curington home. T.B. then pointed to the fourth row of
seats in the courtroom. When the prosecutor stepped to that spot and stated, “approximately
here? About a hundred feet?” T.B. stated, “no, the fifth row.” The prosecutor then stepped to
the fifth row of seats and asked if it was that far to which T.B. stated, “it was farther than that,”
and indicated that the distance may have been “a lot more” than even the opposite wall of the
courtroom. She then testified that she knew the car was never within 500 feet of the Curington
home.
{¶ 16} On re-direct, the following colloquy took place between T.B. and defense
counsel:
Q: Okay, you’ve been to football games?
A: Yeah.
Q: You know a football field, how long it is?
A: Uh-huh.
Q: From where the car was and where the house is, it was longer than a
football field, wasn’t it? A lot longer?
A: Yeah.
Q: Okay, because you’re not real good with distances with this stuff the
Prosecutor’s trying to say about a wall or something over here where he’s
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standing. It’s hard to tell isn’t it?
A: Yes.
Q: But when you were there that evening, it was longer – it was almost two
football fields, wasn’t it?
A: Yes.
Q: And that‘s the distance that you’re understanding, correct?
A: Yes.
Q: And Ms Wilson you know her, correct?
A: Yes.
Q: She’s older?
A: Yes.
Q: Some people would call her senile?
A: Yes.
Q: So she forgets things a lot?
A: Yes.
Q: And you think that’s what happened in this case what the prosecutor’s
trying to point out?
A: Yes.
{¶ 17} The State then presented Wilson and Officer Douglas as rebuttal witnesses.
Douglas testified that he is a road officer, and that during his investigation he made some
measurements. He testified that the distance from the roadway to the Curington home is
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approximately 150 feet. Wilson testified that she has not been diagnosed with dementia or any
related problem. She testified that she is retired, but is involved with numerous activities. She
testified that she travels extensively. She testified that she is not afraid of the Curington
children.
II. The Complaint Was Sufficient to Put Hunter on Notice
of the Offense with which She Was Charged
{¶ 18} Hunter’s First Assignment of Error states:
THE COMPLAINT AGAINST APPELLANT HUNTER WAS
INSUFFICIENT UNDER OHIO R. CRIM. P. 3
{¶ 19} Hunter contends that the conviction should be reversed because the complaint is
deficient as it did not put her on fair notice as to the accusations against her. Specifically, she
argues that a “material element [of the offense] is left to conjecture” because the complaint does
not include “facts or subsections on the complaint describing what [she] allegedly did.”
{¶ 20} Crim.R. 3 provides that “[t]he complaint is a written statement of the essential
facts constituting the offense charged. It shall also state the numerical designation of the
applicable statute or ordinance. It shall be made upon oath before any person authorized by law
to administer oaths.”
{¶ 21} The purpose of a criminal complaint is “to inform the accused of the identity
and essential facts constituting the offense charged.” State v. Echemendia, 6th Dist. Ottawa No.
OT-95-059, 1996 WL 475994, * 1 (Aug. 23, 1996). A complaint is deemed sufficient if it
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charges an offense in the words of the statute upon which it is based. State v. Hadley, 6th Dist.
Fulton No. F-09-007, 2009-Ohio-4595, ¶ 11.
{¶ 22} Herein, the complaint states that Hunter was charged with “recklessly” violating
“a term of a protection order * * * contrary to and in violation of Temporary Protection Order,
Section 2919.27 of the Ohio Revised Code, a 1st degree misdemeanor.” It sets forth the time of
the violation and identifies the place of the violation as the Curington residence. The complaint
was also signed by Marquette Curington.
{¶ 23} R.C. 2919.27(A) states that no one “shall recklessly violate the terms of a
protection order.” The statute then has three subsections setting forth the types of protection
orders to which it applies. Hunter does not contend that she was subject to any protection order
other than the one issued in favor of the Curingtons. Nor does she contend that she was unaware
of the issuance of that order. Furthermore, she was aware of the conditions of that order and of
the fact that going near their home was a violation of that order.
{¶ 24} We find no deficiency in the complaint. Hunter’s First Assignment of Error is
overruled.
III. Hunter’s Conviction Is Supported by the Evidence
{¶ 25} Hunter asserts the following as her Second Assignment of Error:
THE TRIAL COURT’S FINDING OF GUILT WAS NOT SUPPORTED
BY SUFFICIENT EVIDENCE AND DENIED APPELLANT HUNTER DUE
PROCESS UNDER THE FEDERAL AND STATE CONSTITUTIONS. U.S.
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CONST. AMEND. V, AND XIV, OHIO CONST. ART. I, § 10.
{¶ 26} Hunter contends that the State failed to prove that she acted recklessly, the
mental culpability state necessary for the offense. She argues that the evidence demonstrates
that “she acted in good faith when she went to interview Ms. Wilson in preparation of her court
date[,] * * * [and that she] inadvertently drove past the Curington home.”
{¶ 27} “A sufficiency of the evidence argument disputes whether the State has presented
adequate evidence on each element of the offense to allow the case to go to the jury or sustain the
verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶
10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). When reviewing
whether the State has presented sufficient evidence to support a conviction, the relevant inquiry is
whether any rational finder of fact, after viewing the evidence in a light most favorable to the
State, could have found the essential elements of the crime proven beyond a reasonable doubt.
State v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997). A guilty verdict will not be
disturbed on appeal unless “reasonable minds could not reach the conclusion reached by the
trier-of-fact.” Id.{¶ 28} Hunter was convicted of Violation of a Protection Order. That offense is
codified at R.C. 2919.27(A)(2), which states, in relevant part, that “no person shall recklessly
violate the terms of any * * * protection order issued pursuant to section 2151.34, 2903.213, or
2903.214 of the Revised Code.”
{¶ 29} “A person acts recklessly when, with heedless indifference to the consequences,
he perversely disregards a known risk that his conduct is likely to cause a certain result or is
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likely to be of a certain nature.” R.C. 2901.22(C).
{¶ 30} Even if we accept Hunter’s version of the events, the evidence establishes that
she was aware of the prohibition against coming within 500 feet of the Curington family, and
that, despite this knowledge, she chose to drive on the roadway directly in front of the Curington
residence. The evidence establishes that the roadway is a distance of about 150 feet from the
house. Her testimony establishes that she was aware of the location of the Curington residence,
and of the fact that going there would result in a violation of the protection order. Therefore, a
reasonable finder of fact could find from this evidence that the essential element of recklessness
was proven beyond a reasonable doubt.
{¶ 31} Furthermore, Michael Curington testified that Hunter pulled her vehicle directly
into his driveway before driving away. The trial court could have credited Curington’s version
of the incident over Hunter’s version. The credibility of the witnesses and the weight to be given
to their testimony are primarily matters for the finder of fact to resolve. State v. DeHass, 10
Ohio St.2d 230, 227 N.E.2d 212 (1967). Curington’s testimony is not inherently incredible, and
the trial court could therefore have relied upon it in reaching its verdict.
{¶ 32} The evidence in this record, construed in a light most favorable to the State, is
sufficient to support the conviction. Hunter’s Second Assignment of Error is overruled.
IV. CONCLUSION
{¶ 33} Both of Hunter’s assignments of error having been overruled, the judgment of the
trial court is Affirmed.
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DONOVAN and WELBAUM, JJ., concur.
Copies mailed to:
Raymond J. Dundes
Angela Wilson Miller
Hon. Adele M. Riley
Submitted: Thursday, April 4, 2013