Chagrin Falls v. Ptak , 2020 Ohio 5623 ( 2020 )

[Cite as Chagrin Falls v. Ptak, 2020-Ohio-5623.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
VILLAGE OF CHAGRIN FALLS, :
Plaintiff-Appellee, :
No. 109342
v. :
JUSTIN PTAK, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: December 10, 2020
Criminal Appeal from the Bedford Municipal Court
Case No. 18CRB01644
Appearances:
Diemert & Associates Co., L.P.A., Thomas M. Hanculak,
Village of Chagrin Falls Prosecutor; and Lauryn G.
Kitchen, for appellee.
Patituce & Associates, L.L.C., Joseph C. Patituce, and
Megan M. Patituce, for appellant.
MARY J. BOYLE, P.J.:
Defendant-appellant, Justin Ptak, appeals his conviction of menacing
by stalking. He raises five assignments of error for our review:
1. Appellant’s conviction for menacing by stalking is not supported by
legally sufficient evidence as required by our state and federal
constitution.
2. The trial court erred by allowing the admission of cell phone records
without proper authentication resulting in appellant being denied his
right to a fair trial as required by our state and federal constitutions.
3. The trial court erred by allowing admission of hearsay testimony
regarding to whom a license plate was registered or the failure to object
constituted ineffective assistance of counsel.
4. The prosecutor’s comments in closing argument constitu[t]e
prosecutorial misconduct and deprived appellant of the right to a fair
trial under our state and federal constitution.
5. Appellant’s conviction for menacing by stalking was against the
manifest weight of the evidence in violation of our state and federal
constitutions.
Finding no merit to his assignments of error, we affirm.
I. Procedural History and Factual Background
In August 2018, Ptak was charged with telecommunications
harassment in violation of R.C. 2917.21(A)(1), a first-degree misdemeanor; and
menacing by stalking in violation of R.C. 2903.211(A)(1), a first-degree
misdemeanor. In October 2019, a jury trial ensued. Plaintiff-appellee, the village of
Chagrin Falls (“Chagrin Falls”), presented the following evidence at trial.
Ptak went to high school with the victim, C.W., and the two dated in
2016. C.W. testified that she and Ptak dated for five months when she was seventeen
years old and in the eleventh grade. In the early spring of 2016, C.W. ended the
relationship because it was “overwhelming” and “emotionally demanding,” she did
things she “wasn’t comfortable” doing, and Ptak would “excessively” call and text
her. C.W. testified that after she ended the relationship, Ptak continued to
“excessive[ly]” call and text her. Some of the messages were “love texts,” but others
were “angry, demeaning” messages. C.W. told Ptak not to contact her anymore, but
“he kept on doing it,” and C.W. blocked his phone number. She explained that at
some point in 2016, she and her parents contacted the Geauga County Sheriff’s
Office about Ptak because of the content and frequency of his text messages and his
refusal to stop sending them. C.W. testified that her mother was “scared” and
thought Ptak was “unstable.” The sheriff told Ptak to stop contacting C.W., and he
temporarily stopped.
In 2017, C.W. moved from Ohio to Minnesota. C.W. unblocked Ptak’s
phone number and had one “very simple back-and-forth text conversation” about a
mutual friend. But when C.W. realized that Ptak interpreted the conversation as her
romantically “advancing” on him, she blocked his phone number again. C.W.
testified that Ptak repeated a pattern of texting her from phone numbers she did not
recognize “a bunch of times” within a few days and then “stop[ping] for a little bit.”
She said that after she went to the police in 2016, Ptak stopped using his name in
the text messages. She explained that she knew the texts were from Ptak because of
the content of the messages and that the messages referred to her by names that
only Ptak called her. C.W. was dating somebody else, and she asked her boyfriend
to tell Ptak to stop contacting her. She made the same request of the housing
manager where she was living She testified that the texts temporarily stopped after
her boyfriend and housing manager reached out to Ptak, but then the messages
restarted. In the summer of 2017, C.W. moved back in with her parents in Ohio, and
in early 2018 she moved into an apartment in Chagrin Falls with her boyfriend. Ptak
continued to text her from phone numbers she did not recognize. C.W. testified that
she felt “powerless, disrespected, [and] violated.”
C.W. testified that in March 2018, she received a text message that
said, “I miss you,” and, “I still have the pictures you gave me.” C.W. thought the
reference was to nude photos, became “very upset,” unblocked Ptak’s phone
number, texted him to try to get the photos back, and called him to warn him that
she would call the police if he did not return the photos. She said that Ptak
responded by sending her “the picture that he was talking about” and claiming that
he did not have any nude photos.
In May 2018, C.W.’s mother got a puppy, and C.W. posted a picture
of the puppy on social media. C.W. had blocked Ptak from her social media
accounts, but after she posted the puppy photo, C.W. received a text message from
a number she did not recognize that said it would “be a shame if something
happened” to the puppy. C.W. testified that she “kn[e]w” the text came from Ptak
but that she did not have “hard evidence.” C.W. was “really concerned” about the
text message, and her mother was “very, very scared.” Her mother contacted the
Geauga County Sheriff’s Office, which instructed C.W. how to send a cease-and-
desist letter to Ptak via certified mail. C.W. sent Ptak the letter on May 11, 2017,
instructing him not to contact her anymore and advising him that she would report
any further communication attempts to the police. C.W. received a receipt reflecting
that the letter had been delivered. An employee from the U.S. Post Office in Chagrin
Falls testified that she delivered the letter to Ptak’s address on May 12, 2018. C.W.
testified that the text messages stopped “temporarily” after she sent the letter. But
soon she continued to receive messages from him. She reported the messages to the
Chagrin Falls Police Department, who told Ptak to stop contacting her.
On August 27, 2018, C.W. found a letter and roses on her car parked
in a lot across from her apartment building. The letter was signed by “Justin.” In
the letter, Ptak expressed his love for C.W., said he felt “awful” about the “terrible
things” he said to her, and asked her to not “give up” on him. C.W., her boyfriend,
and her father went to the Chagrin Falls Police Department that day to “get [Ptak]
to stop.” Sergeant Jason Fischer, a Chagrin Falls police officer, testified that he
initiated a written and video-recorded report with her. C.W. told Sergeant Fischer
that she did not think that Ptak would cause her physical harm but that she was
“freaked out” by his behavior. She testified that it was not “productive for [her] to
live [her] life catastrophizing” that he would kill her or beat her up, but that it was
“frightening” that he figured out where she lived. She explained that she never told
Ptak where she lived, and they no longer had friends in common who could have
told him. She testified that she wrote in her statement that she was “scared.” C.W.
switched cars with her mother for a few weeks, hoping that Ptak would not recognize
the car, not “mess with” her car, and not know where she was.
On the afternoon of August 28, 2018, Sergeant Fischer reached Ptak
by telephone and told him “that he was absolutely not in any way, shape, or form to
contact [C.W.] from this point forward.” On August 29, around 1:00 p.m., Ptak came
to the police station with his mother, and Sergeant Fischer processed charges
against him for telecommunications harassment and menacing by stalking.
Sergeant Fischer “bonded [Ptak] out right then and there via personal bond,” and
he was released around 2:45 p.m.
Detective Andrew Capwill, a detective sergeant for the Chagrin Falls
Police Department, subpoenaed the phone records from January 1, 2018, through
September 11, 2018, for C.W.’s cell phone from Verizon and Ptak’s cell phone from
AT&T. Detective Capwill explained that the records show that Ptak called C.W. 55
times in 2018: 1 call in February, 6 in March, 14 in June, 16 in July, and 18 in August.
C.W. called Ptak once on March 2, 2018, which C.W. testified was the incident
regarding the photos. On August 27, 2019, the day that C.W. found the love letter
and roses on her car, Ptak called C.W. twice. He called her again at 11:06 a.m. on
August 28, at 2:39 a.m. on August 29 (after Sergeant Fischer instructed him to stop
contacting C.W.), and at 8:05 p.m. on August 29 (after he had been charged).
In September 2018, the trial court issued a no-contact order against
Ptak.
In February 2019, as this case was proceeding, C.W. noticed a car
following her while she was driving. The car followed her to her apartment complex
and parked when she parked. She went inside the leasing office to deposit her rent,
and the driver was still in the car that had been following her when she returned to
her car. The other car followed her out of the parking lot. She pulled over to the side
of the road, and the other car also pulled over. As she continued to drive and pull
into a Panera Bread parking lot, so did the other car. C.W. observed that the driver
was a man with the hood of his sweatshirt covering his head. She suspected the
driver was Ptak and used her cell phone to take a video of the car as she walked into
Panera Bread. After a few minutes, C.W. walked back to her car holding up her
phone to make it “more obvious” that she was recording, and the other car left. C.W.
obtained the license plate and reported the incident to the Chagrin Falls police. She
said that the police ran the license plate through their database, and an officer told
her that the vehicle was registered to Ptak’s mother. Sergeant Fischer likewise
testified that on February 3, 2019, C.W. came to the station again, and he obtained
her statement about being followed. He said he viewed the video C.W. captured, ran
the license plate through the law enforcement automated data system, and
generated a report (“LEADS report”) that stated the owner of the vehicle was
Kathleen Ptak.
At the end of the state’s case, Ptak moved for a Crim.R. 29(A)
acquittal. The trial court denied the motion. Ptak did not call any witnesses.
After deliberations, the jury found Ptak guilty of menacing by stalking
but not guilty of telecommunications harassment. The trial court referred Ptak for
a presentence investigation report.
At the sentencing hearing in November 2019, the trial court
sentenced Ptak to 180 days in jail, suspended 160 of them on the condition of five
years of community control sanctions, imposed a $500 fine, and assessed court costs
against Ptak. The trial court ordered that Ptak not contact C.W. and that he obtain
a mental health evaluation and comply with any recommendations. Ptak’s counsel
asked that the trial court stay execution of the sentence pending an appeal, and the
trial court denied the request.
Ptak timely appeals from the sentencing judgment. We will address
his assignments of error out of order for ease of discussion.
II. Admission of Cell Phone Records
In his second assignment of error, Ptak argues that he was denied his
right to a fair trial because the trial court improperly admitted cell phone records
without sufficient authentication. Ptak contends that (1) the records are not
business records pursuant to Evid.R. 803(6), (2) Detective Capwill did not identify
an affidavit from the records custodian from either cell phone provider, (3) C.W.
could not authenticate the records because she could not identify Ptak as the caller,
and (4) Chagrin Falls did not elicit testimony from a records custodian.
We review a trial court’s decision to admit evidence for abuse of
discretion. O’Toole v. Hamman, 8th Dist. Cuyahoga No. 109193, 2020-Ohio-4753,
¶ 28. An abuse of discretion occurs when the trial court’s attitude is unreasonable,
arbitrary, or unconscionable. Marketing Assocs. v. Gottlieb, 8th Dist. Cuyahoga No.
92292, 2010-Ohio-59, ¶ 47.
Evid.R. 901(A) governs the authentication of evidence. “The
threshold for admission is quite low, as the proponent need only submit ‘evidence
sufficient to support a finding that the matter in question is what its proponent
claims.’” State v. Williams, 8th Dist. Cuyahoga No. 106563, 2018-Ohio-4612, ¶ 26,
quoting Evid.R. 901(A). The party trying to admit the evidence may show
authenticity through direct or circumstantial evidence. Id.We find that the trial court did not abuse its discretion in admitting
the AT&T records regarding Ptak’s cell phone. In State v. Richardson, 2016-Ohio-
8081, 75 N.E.3d 831 (2d Dist.), the Second District held that the trial court did not
abuse its discretion when it admitted bank records in part because the state
presented sufficient evidence to authenticate the records. A Department of
Agriculture agent testified that he had requested the bank records pursuant to a
subpoena. Id. at ¶ 41. Attached to the records that the agent received was a letter
from one of the bank’s document review specialists that certified that the records
were true and correct copies of the originals. Id. at ¶ 40-41. The Second District
found that the subpoena issued by the agent in his official capacity and the certified
letter “provide the bank records with sufficient indicia of reliability that the
documents are in fact what they purport to be.” Id. at ¶ 45.
Likewise, here, Detective Capwill testified that he obtained the
records of Ptak’s cell phone through a court-ordered subpoena to AT&T, and that
the records were accompanied by a certification of authenticity from an AT&T
custodian.1 The certification itself was admitted into evidence and titled, “Certificate
1 The record does not contain a certification for C.W.’s phone records from Verizon,
but Detective Capwill testified that the AT&T and Verizon records were consistent with
each other, and Ptak’s phone records from AT&T alone are sufficient to show when Ptak
and C.W. called each other in 2018.
of Authenticity of Domestic Records Pursuant to Federal Rules of Evidence 902(11)
and 902(13).” It is signed by an AT&T legal compliance analyst and states that the
records are “true duplicates of the original records[.]” It was therefore unnecessary
for C.W. to also authenticate the records or for Chagrin Falls to elicit testimony from
a records custodian.
Accordingly, we overrule Ptak’s second assignment of error.
III. Ineffective Assistance of Counsel
In his third assignment of error, Ptak argues that his counsel was
ineffective for failing to object to hearsay testimony from C.W. and Sergeant Fischer
that the car following C.W. in February 2019 was registered to Ptak’s mother.
The defendant carries the burden of establishing a claim of ineffective
assistance of counsel on appeal. State v. Corrothers, 8th Dist. Cuyahoga No. 72064,
1998 Ohio App. LEXIS 491, 19 (Feb. 12, 1998). To gain reversal on a claim of
ineffective assistance of counsel, a defendant must show that (1) his or her “counsel’s
performance was deficient,” and (2) “the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984). The first prong of the Strickland test requires the defendant to show
“that counsel’s representation fell below an objective standard of reasonableness.”
Id. at 688. Strickland’s second prong requires the defendant to show “that there is
a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Id. at 694.
“‘Hearsay’ is a statement, other than one made by the declarant while
testifying at trial or hearing, offered into evidence to prove the truth of the matter
asserted.” Evid.R. 801(C). Generally, hearsay testimony is inadmissible unless the
testimony falls within one of the recognized exceptions to the hearsay rule.
Evid.R. 802.
The Eighth District has consistently found that LEADS reports are
admissible under the public records exception to the hearsay rule,
Evid.R. 803(8)(a). State v. Schentur, 8th Dist. Cuyahoga No. 108448, 2020-Ohio-
1603, ¶ 29 (“This court has consistently held that a LEADS report is admissible when
properly authenticated, pursuant to Evid.R. 803(8) and 901.”). Cleveland v. Craig,
8th Dist. Cuyahoga No. 99619, 2013-Ohio-5742, ¶ 37 (“[T]his court has repeatedly
found that a LEADS printout is admissible as a public record under
Evid.R. 803(8)(a).”). “A police officer’s testimony is sufficient to show authenticity
of a LEADS printout under Evid.R. 901.” Schentur at ¶ 31; see also Craig at ¶ 37;
State v. Papusha, 12th Dist. Preble No. CA2006-11-025, 2007-Ohio-3966, ¶ 9.
Here, Chagrin Falls submitted into evidence the LEADS report
identifying Kathleen Ptak as the owner of the car that followed C.W. in February
2019. Sergeant Fischer identified the LEADS report, testified that he entered the
license plate through the LEADS system, and the LEADS report identified the owner
of the vehicle as Kathleen Ptak. The LEADS report is therefore admissible under the
public records exception to the hearsay rule, and Sergeant Fischer’s testimony is
sufficient to establish the report’s authenticity. Therefore, the evidence that
Kathleen Ptak owned the vehicle that was following C.W. was properly before the
jury via the LEADS report and Sergeant Fischer’s testimony.
Ptak relies on State v. Garrett, 8th Dist. Cuyahoga Nos. 87112 and
87123, 2006-Ohio-6020, in which this court found that a police officer’s testimony
based on his recollection of a mobile data computer was inadmissible hearsay. In
Garrett, the computer data information itself was not introduced into the record.
Id. at ¶ 13. But here, the LEADS report was submitted as an exhibit. Even though
C.W.’s testimony about what the police told her may have been hearsay, the evidence
of the identity of the vehicle owner was properly admitted through the LEADS report
and Sergeant Fischer’s testimony. Any deficiency in Ptak’s counsel’s failure to object
to C.W.’s testimony would not have prejudiced Ptak’s defense. Accordingly, Ptak is
unable to show that his counsel was ineffective.
We therefore overrule Ptak’s third assignment of error.
IV. Sufficiency of the Evidence
In his first assignment of error, Ptak argues that his conviction for
menacing by stalking is not supported by sufficient evidence. Ptak contends that
Chagrin Falls failed to present evidence that (1) he engaged in a pattern of conduct,
(2) he knowingly caused C.W. to believe that he would cause her physical harm, and
(3) that C.W. suffered mental distress. Ptak argues there is insufficient evidence of
a pattern of conduct because Chagrin Falls did now show that he was the person who
called and texted C.W. and followed her by car to her apartment and Panera Bread.
He maintains that Chagrin Falls did not submit any text messages into evidence or
produce any evidence about the duration of the phone calls. He also claims that he
never threatened to physically harm C.W., and any annoyance C.W. felt does not rise
to the level of mental distress.
Crim.R. 29(A) provides for an acquittal “if the evidence is insufficient
to sustain a conviction of such offense or offenses.” A sufficiency challenge
essentially argues that the evidence presented was inadequate to support the jury
verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d
541 (1997). “‘The relevant question is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’” State v. Getsy, 84 Ohio
St.3d 180, 193, 702 N.E.2d 866 (1998), quoting Jackson v. Virginia, 443 U.S. 307,
319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “[A] conviction based on legally
insufficient evidence constitutes a denial of due process.” Thompkins at 386. When
reviewing a sufficiency-of-the-evidence claim, we review the evidence in a light most
favorable to the prosecution. State v. Hill, 75 Ohio St.3d 195, 205, 661 N.E.2d 1068(1996).
Both direct and circumstantial evidence may support a conviction.
Brook Park v. Gannon, 2019-Ohio-2224, 137 N.E.3d 701, ¶ 24 (8th Dist.).
“Although there are obvious differences between direct and circumstantial evidence,
those differences are irrelevant to the probative value of the evidence —
circumstantial evidence carries the same weight as direct evidence.” State v.
Cassano, 8th Dist. Cuyahoga No. 97228, 2012-Ohio-4047, ¶ 13. “Since
circumstantial evidence and direct evidence are indistinguishable so far as the jury’s
fact-finding function is concerned, all that is required of the jury is that it weigh all
of the evidence, direct and circumstantial, against the standard of proof beyond a
reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 272, 574 N.E.2d 492 (1991).
“‘Circumstantial evidence is not only sufficient, but may also be more certain,
satisfying, and persuasive than direct evidence.’” State v. Hawthorne, 8th Dist.
Cuyahoga No. 96496, 2011-Ohio-6078, ¶ 9, quoting Michalic v. Cleveland Tankers,
Inc., 364 U.S. 325, 330, 81 S.Ct. 6, 5 L.Ed.2d 20 (1960).
R.C. 2903.211(A)(1) states:
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 a family or household member of the other person
or cause mental distress to the other person or a family or household
member of the other person.
R.C. 2903.211(D)(1) defines a pattern of conduct as two or more
actions or incidents closely related in time. “The incidents need not occur within
any specific temporal period.” Rufener v. Hutson, 8th Dist. Cuyahoga No. 97635,
2012-Ohio-5061, ¶ 16. “A person acts knowingly, regardless of his purpose, when he
is aware that his conduct will probably cause a certain result or will probably be of a
certain nature.” R.C. 2901.22(B). “A person has knowledge of circumstances when
he is aware that such circumstances probably exist.” Id. It does not matter whether
the defendant “intended that his actions cause fear of physical harm or mental
distress[;] instead[,] what is important is [whether] he knew his actions would
probably result in such fear and mental distress.” Vega v. Tomas, 8th Dist.
Cuyahoga No. 104647, 2017-Ohio-298, ¶ 15, citing R.C. 2901.22(B).
R.C. 2903.211(D)(2) defines mental distress as “any mental illness or
condition that involves some temporary substantial incapacity” or “any mental
illness or condition that would normally require psychiatric treatment,
psychological treatment, or other mental health services, whether or not the person
requested or received” such treatment or services. “‘Incapacity is substantial if it has
a significant impact upon the victim’s daily life.’” M.D. v. M.D., 2018-Ohio-4218,
121 N.E.3d 819, ¶ 99 (8th Dist.), quoting State v. Horsley, 10th Dist. Franklin No.
05AP-350, 2006-Ohio-1208, ¶ 48. “Mental distress need not be incapacitating or
debilitating * * * [, and] expert testimony is not required to find mental distress.”
Perry v. Joseph, 10th Dist. Franklin Nos. 07AP-359, 07AP-360 and 07AP-361,
2008-Ohio-1107, ¶ 8. “Evidence of changed routine can support a finding of mental
distress.” Morton v. Pyles, 7th Dist. Mahoning No. 11 MA 124, 2012-Ohio-5343,
¶ 15. So can evidence that the complainant involved the police. State v. Calliens,
8th Dist. Cuyahoga No. 109005, 2020-Ohio-4064, ¶ 48.
After reviewing the record, we find there was sufficient evidence for
the jury to find that Ptak knowingly engaged in a pattern of conduct that caused C.W.
mental distress. Threats of physical harm are not necessary to sustain a conviction
for menacing by stalking. R.C. 2903.211(A)(1). C.W. went to the police on four
separate occasions to try to force Ptak to stop contacting her: (1) in 2016 when Ptak
continued to contact her after she told him to stop; (2) in May 2018 when Ptak
threatened her mother’s puppy and he would not stop sending her text messages,
(3) in August 2018 when Ptak left a love letter and roses on her car outside of her
apartment even though she had not told him where she lived; and (4) in February
2019 when someone she suspected to be Ptak was following her in a car that was
confirmed to belong to Ptak’s mother.
There is sufficient evidence in the record to identify Ptak as the person
who engaged in this pattern of conduct. Even though Chagrin Falls did not submit
any text messages into evidence, C.W. testified that she knew the text messages were
from Ptak because they referred to her by names that only Ptak called her. Ptak did
not deny sending C.W. a text message about the pictures she gave him when she
confronted him. The love letter left on C.W.’s car with the roses on August 27, 2018,
was signed by Ptak, and the phone records show that Ptak’s cell phone called C.W.’s
twice on that day. Furthermore, the LEADS report shows that the car that was
following C.W. in February 2019 belonged to Ptak’s mother, and C.W. testified that
the driver of the car was male. Ptak is correct that Chagrin Falls did not present
direct evidence that he was the person sending the text messages, that he was the
one using his cell phone to call C.W., or that he was the male driving the car. But
viewing the circumstantial evidence in the light most favorable to Chagrin Falls, any
rational jury could have found beyond a reasonable doubt that Ptak was the one who
engaged in this pattern of conduct.
As to mental distress, there is conflict among the Ohio Appellate
Districts regarding whether R.C. 2903.211(A)(1) requires the prosecution to show
that the person actually suffered mental distress or merely that the person believes
that the defendant will cause him or her mental distress. Fondessy v. Simon, 142
Ohio St.3d 147, 2014-Ohio-4638, 28 N.E.3d 1202, ¶ 17 (Kennedy, J., dissenting) (“A
conflict exists among the appellate districts regarding whether R.C. 2903.211(A)(1)
requires that the victim actually experienced mental distress or whether the victim’s
belief that the stalker will cause him or her mental distress is sufficient.”); State v.
Rasawehr, 3d Dist. Mercer No. 10-19-15, 2020-Ohio-429, ¶ 22, fn. 4 (recognizing
the conflict). There is also a lack of clarity within the Eighth District on this issue.
Compare State v. Beckwith, 2017-Ohio-4298, 82 N.E.3d 1198, ¶ 14 (8th Dist.)
(“[F]or a conviction of menacing by stalking, the statute does not require that the
victim actually suffered mental distress.”), with Williams v. Flannery, 8th Dist.
Cuyahoga No. 101880, 2015-Ohio-2040, ¶ 9 (requiring a showing of mental
distress). However, the distinction here makes no difference because we find that
viewing the evidence in the light most favorable to C.W., Chagrin Falls presented
sufficient evidence both that Ptak knowingly caused C.W. to believe that she would
suffer mental distress and that C.W. actually suffered mental distress.
Chagrin Falls presented sufficient evidence that Ptak knew that he
was causing C.W. to believe that she would suffer mental distress. In 2017, both
C.W.’s boyfriend and her housing manager contacted Ptak to tell him to stop calling
and sending C.W. text messages. In March 2018, C.W. called and texted Ptak very
upset in response to his message about “the pictures.” In May 2018, C.W. sent Ptak
a letter via certified mail warning him that she would contact the police if he were to
contact her again. C.W. went to the police on four separate occasions, and the police
told Ptak to stop contacting her. This evidence is sufficient to show that Ptak was
aware that his conduct was causing C.W. to believe that she would suffer mental
distress. See State v. Erker, 2019-Ohio-3185, 141 N.E.3d 543, ¶ 81 (8th Dist.)
(finding defendant knowingly caused the victim to believe that she would suffer
mental distress because she “called the police numerous times, and the police spoke
with [the defendant] on more than one occasion about not contacting” her).
The evidence that C.W. went to the police four times also shows that
Ptak actually caused C.W. mental distress. Calliens, 8th Dist. Cuyahoga No. 109005,
2020-Ohio-4064, at ¶ 48 (“[T]he fact that [the victim] was involving the police in
the first-place evidences mental distress.”). Chagrin Falls also demonstrated mental
distress with evidence that C.W. changed her routine by switching cars with her
mother for a few weeks so that Ptak could not follow her. See R.S. v. J.W., 9th Dist.
Summit No. 28970, 2018-Ohio-5316, ¶ 25 (finding sufficient evidence of mental
distress where the victim started using a different vehicle, changed her route to
work, parked in a garage so her vehicle was out of sight, and refrained from placing
window decals on the vehicle that would make it recognizable as hers); State v.
Williams, 8th Dist. Cuyahoga No. 107133, 2019-Ohio-2323, ¶ 24 (mail carrier’s act
of working her route out of order to prevent her former boyfriend from following her
was evidence of mental distress). Ptak points out that C.W. told Sergeant Fischer
that she did not think Ptak would physically harm her, but C.W. also told Sergeant
Fischer that Ptak’s conduct “freaked [her] out.” C.W. testified that it was
“frightening” to her that this “strange man” was contacting her and figured out
where she lived. She said that she did not “know him anymore” and that she did not
“know what he’s capable of.”
Ptak cites State v. Beckwith, 8th Dist. Cuyahoga No. 98497, 2013-
Ohio-492, to argue that evidence that someone is uncomfortable or “creeped out” is
insufficient to establish mental distress. He also relies on Cleveland Hts. v. Lewis,
8th Dist. Cuyahoga No. 79511, 2002-Ohio-2736, for the proposition that evidence
that someone is upset, worried, or fearful about “not being able to go where she
wants” is insufficient to show mental distress. In Beckwith, this court found there
was insufficient evidence of mental distress where a library employee was
uncomfortable and “creeped out” because the defendant followed her around the
library and to a hotel entrance where she noticed he had his cell phone pointed at
her behind, but he did not call her, and he spoke to her only twice to help him find a
book and download a song. Id. at ¶ 17. In Lewis, this court found insufficient
evidence of mental distress where the defendant excessively called his ex-wife one
night, and the ex-wife testified that she was worried for her teenage children who
were staying with the defendant and was concerned that her children would not be
able to go “where they needed to go.” Id. at ¶ 17-24.
However, after reviewing the evidence presented, Ptak’s conduct and
C.W.’s distress in this case is more extreme than the facts in Beckwith and Lewis.
The evidence in this case is more akin to J.W. v. D.W., 10th Dist. Franklin No. 19AP-
52, 2019-Ohio-4018. In J.W., the Tenth District found sufficient evidence to support
menacing by stalking where over the course of years, the offender “repeatedly
contacted [the victim] by phone, email, and appearing at his house.” Id. at ¶ 51. The
victim and his wife made changes “in their daily lives to attempt to avoid her,” and
the victim’s wife experienced stress and anxiety that affected her recovery from a
surgery. Id. In contrast to Beckwith and Lewis, and more like J.W., Ptak continued
to contact C.W. over the course of multiple years despite C.W., her boyfriend, her
housing manager, and the police repeatedly telling him to stop. Ptak’s messages
caused C.W. to send him a letter via certified mail and to contact the police. Ptak
discovered where C.W. lived without her telling him, causing C.W. to switch cars
with her mother to avoid him. And Ptak followed C.W. by car even after these
charges were processed against him and a no-contact order was in place, causing her
enough stress and anxiety to again reach out to the police.
Viewing the evidence in the light most favorable to Chagrin Falls, we
find that Chagrin Falls presented sufficient evidence to support a conviction for
menacing by stalking. Accordingly, we overrule Ptak’s first assignment of error.
V. Manifest Weight of the Evidence
In his fifth assignment of error, Ptak argues that his conviction for
menacing by stalking was against the manifest weight of the evidence. He again
contends that he never threatened C.W., C.W. never felt physically threatened or
suffered physical harm, and any inconvenience C.W. felt did not rise to the level of
mental distress. He further maintains that C.W. moved on with her life by attending
college, there was no evidence that Ptak sent C.W. text messages, and that C.W. did
not testify that she received the 55 phone calls in 2018.
Unlike sufficiency of the evidence, a challenge to the manifest weight
of the evidence attacks the credibility of the evidence presented. Thompkins, 78
Ohio St.3d at 387, 678 N.E.2d 541. Because it is a broader review, a reviewing court
may determine that a judgment of a trial court is sustained by sufficient evidence,
but nevertheless conclude that the judgment is against the weight of the evidence.
Id.In determining whether a conviction is against the manifest weight of
the evidence, the court of appeals functions as a “thirteenth juror.” Id. In doing so,
it 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.’”
Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d
717 (1st Dist.1983). Reversing a conviction as being against the manifest weight of
the evidence and ordering a new trial should be reserved for only the “‘exceptional
case in which the evidence weighs heavily against the conviction.’” Id., quoting
Martin.
We agree with Ptak that there is no evidence that he physically
harmed or threatened C.W., but to establish menacing by stalking, physical harm is
not necessary if the defendant’s pattern of conduct knowingly caused someone to
suffer mental distress. Ptak insists that the weight of the evidence shows that he did
not cause C.W. mental distress, but we disagree. Ptak’s conduct went on for years,
and C.W. went to the police on four separate occasions to try to force Ptak to stop.
Although she did continue to “move on with her life,” she was “frighten[ed]” that
Ptak figured out where she lived and was “scared” at the possibility that he was
following her — a possibility that was later confirmed when he followed her by car
after the charges against Ptak were processed and a no-contact order was in place.
She said that she did not “know what he was capable of,” and she changed her
routine by switching cars with her mother for a few weeks to try to prevent Ptak from
following her. We find that there was credible evidence that Ptak’s conduct
significantly impacted C.W.’s daily life.
Despite Ptak’s contention that there is not credible evidence that he
texted C.W., C.W. herself testified that she received an excessive amount of text
messages. We find C.W.’s testimony to be credible. She explained that she knew the
texts were from Ptak because they referred to her by names that only Ptak called her,
they referred to photos that she had sent Ptak, they contained messages about
wanting to be with her, they temporarily stopped when Ptak was told to stop
contacting her, and she did not know anyone else who could have been sending
them. We agree with Ptak that his 55 phone calls to C.W. could not have contributed
to C.W.’s mental distress if she had blocked his phone number and was not receiving
the calls. However, there is no evidence that Ptak knew his calls were not going
through, and the record of the calls is circumstantial evidence that Ptak was also the
person sending her the text messages to which she testified.
After reviewing the entire record and weighing the evidence and all
reasonable inferences, we find that the jury did not clearly lose its way and create
such a manifest miscarriage of justice that Ptak’s menacing by stalking conviction
must be reversed and a new trial ordered. This is simply not the exceptional case
where the evidence weighs heavily against the conviction.
Accordingly, we overrule Ptak’s fifth assignment of error.
VI. Prosecutorial Misconduct
In his fourth assignment of error, Ptak argues that Chagrin Falls’
counsel committed prosecutorial misconduct by engaging in “inappropriate,
irrelevant, and immaterial comments” in his closing argument. Specifically, Ptak
points to comments when Chagrin Falls’ counsel (1) called C.W.’s testimony “overly
honest,” (2) referred to what Ptak’s conduct “did to” C.W., (3) claimed that the
Chagrin Falls Police Department “protect[ed] and serve[d],” (4) shifted the burden
of proof to Ptak by arguing that Ptak did not present any evidence, (5) impermissibly
commented that he had been waking up at 4:00 a.m. to prepare for trial, and (6)
asked the jury to give C.W. her life back by comparing her to a victim of child abuse
or murder.
Our review of the record shows Ptak failed to object to all but one of
the prosecutor’s comments, and thus, he waived all but plain error as to those
comments. State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263,
¶ 169. Under Crim.R. 52(B), “[p]lain errors or defects affecting substantial rights
may be noticed although they were not brought to the attention of the court.” The
plain-error rule is to be invoked only under exceptional circumstances to avoid a
manifest miscarriage of justice. State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804(1987). Plain error does not occur unless, but for the error, the outcome of the trial
clearly would have been different. Id.The test to determine if there was prosecutorial misconduct during
closing arguments is whether the remarks were improper and if so, whether they
prejudicially affected the defendant’s substantial rights. State v. Smith, 14 Ohio
St.3d 13, 14, 470 N.E.2d 883 (1984). We must review the entire record to determine
whether the disputed remarks were unfairly prejudicial. State v. Moritz, 63 Ohio
St.2d 150, 157, 407 N.E.2d 1268 (1980). The touchstone of our analysis “is the
fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips, 455 U.S.
209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). Furthermore, an appellant must show
that there is a reasonable probability that, but for the prosecutor’s misconduct, the
result of the proceeding would have been different. State v. Loza, 71 Ohio St.3d 61,
78-79, 641 N.E.2d 1082 (1994).
Although the prosecution is entitled to considerable latitude in
opening and closing arguments, it must nevertheless avoid assertions that are
calculated to mislead a jury. Smith at 14. It is improper for the prosecution to
express its personal belief or opinion as to the guilt or credibility of a witness. Id.However, the prosecution is permitted to fairly comment on the credibility of
witnesses based on the witnesses’ testimony at trial. State v. Williams, 8th Dist.
Cuyahoga No. 90739, 2012-Ohio-1741, ¶ 12. “A prosecutor has wide latitude to
comment on the evidence of record, and may suggest conclusions based on that
evidence in a closing argument.” State v. Ceron, 8th Dist. Cuyahoga No. 99388,
2013-Ohio-5241, ¶ 111. Prosecutors may comment in closing argument regarding
“‘what the evidence has shown and what reasonable inferences [the prosecutor]
believes may be drawn therefrom.’” State v. Lott, 51 Ohio St.3d 160, 165, 555 N.E.2d
293 (1990), quoting State v. Stephens, 24 Ohio St.2d 76, 82, 263 N.E.2d 773 (1970).
Further, a prosecutor may not invade the realm of a jury by alluding
to matters outside of the record. State v. Baker, 159 Ohio App.3d 462, 2005-Ohio-
45, 824 N.E.2d 162, ¶ 19 (2d Dist.). However, “[i]solated comments by a prosecutor
are not to be taken out of context and be given their most damaging meaning,” and
we must review the challenged statements within the context of the entire trial.
State v. Hill, 75 Ohio St.3d 195, 204, 661 N.E.2d 1068 (1996).
Although some of the prosecutor’s comments were improper, after
reviewing the comments within the context of the entire trial, we cannot say that
they prejudicially affected Ptak’s substantial rights. The prosecutor was permitted
to comment on C.W.’s credibility based on her trial testimony, and the prosecutor’s
comment about C.W. being “overly honest” (immediately followed by a comment
that she answered “even the most uncomfortable of questions”) was likely referring
to C.W.’s willingness to answer questions about her dating history on cross-
examination. Likewise, the prosecutor’s comment about what Ptak’s conduct “did
to” C.W. was based on her trial testimony about the mental distress his conduct
caused her. We see nothing improper about the prosecutor’s theme of “protect and
serve.” We do not find that the prosecutor shifted the burden of proof by
commenting that Ptak did not present any evidence that he did not receive C.W.’s
certified letter and that the post office employee was lying about delivering it. “It is
not improper for the prosecution, in closing, to point out the lack of evidence
supporting the defense theory of the case.” State v. Jackson, 8th Dist. Cuyahoga No.
76141, 2000 Ohio App. LEXIS 1741, 31 (Apr. 20, 2000). The prosecutor’s comment
about what time he woke up to prepare for trial was irrelevant (or as Ptak
characterizes it, a “call to sympathy”), and it was improper for the prosecutor to ask
the jury to give C.W. her life back by comparing her to a victim of child abuse or
murder. However, after reviewing the record, we do not find that Ptak has shown
that there is a reasonable probability that, but for the prosecutor’s improper
comments, the result of the proceeding would have been different.
We therefore overrule Ptak’s fourth assignment of error.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
MARY J. BOYLE, PRESIDING JUDGE
ANITA LASTER MAYS, J., and
KATHLEEN ANN KEOUGH, J., CONCUR