State v. Ham , 2019 Ohio 3468 ( 2019 )

[Cite as State v. Ham, 2019-Ohio-3468.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-180338
TRIAL NO. 18CBR-6614
Plaintiff-Appellee, :
vs. : O P I N I O N.
CLARENCE HAM, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: August 28, 2019
Paula Boggs Muething, City Solicitor, Natalia Harris, City Prosecutor, and Jon
Vogt, Assistant City Prosecutor, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and David H. Hoffmann,
Assistant Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Presiding Judge.
{¶1} Clarence Ham appeals the judgment of the Hamilton County
Municipal Court convicting him of telecommunications harassment. In his sole
assignment of error, he contends that the state failed to present sufficient evidence to
support his conviction, and that the conviction was against the manifest weight of the
evidence. For the following reasons, we affirm the judgment of the trial court.
Factual Background
{¶2} Clarence Ham was charged with one count of telecommunications
harassment in violation of R.C. 2917.21(B)(1), a misdemeanor of the first degree. The
complaint alleged that Ham had sent numerous messages to Mirana Eason,
threatening her life through the use of a telecommunications device.
{¶3} Ham pled not guilty and proceeded to a bench trial. Eason was the
sole witness for the state. She testified that she and Ham had dated briefly in 2016.
On March 5 or 6, 2018, she had had a video chat through Facebook with Ham. He
then sent several messages through Facebook Messenger. His first message said,
“You a dead bitch, you know that? I rode past your house the other day. Now I got a
reason to stay.” Eason testified that that message had terrified her. He sent another
message, “See me when you see me. This time I’m going to be strapped.” She
interpreted that to mean that he would have a gun the next time she saw him. When
he sent a message that said, “LOL your days are numbered,” she called the police
because she was scared for her life. Screenshots of all the messages were admitted
into evidence.
{¶4} On cross-examination, Eason testified that in order to read the
message, she had had to accept Ham’s Facebook friend request. She also testified
that her friend Shalom Jones had also participated in the messenger conversation.
He sent Ham several messages asking Ham if he wanted to fight.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶5} On redirect, Eason testified that she had previously blocked Ham, and
he had made fake profiles and began harassing her children. She stated that the
harassment had been going on for a long time, and she had just wanted him to leave
her alone.
{¶6} After reviewing the exhibits, the trial court found that it was clear that
Ham’s opening conversation had begun with a threat. The trial court found him
guilty and sentenced him to 180 days in jail.
Sufficiency and Manifest Weight
{¶7} In his sole assignment of error, Ham argues that the guilty finding was
not supported by sufficient evidence and was contrary to the manifest weight of the
evidence.
{¶8} In a challenge to the sufficiency of the evidence, the question is
whether, after viewing the evidence in the light most favorable to the state, any
rational trier of fact could have found all the essential elements of the crime proved
beyond a reasonable doubt. State v. Jenks, 61 Ohio St. 3d 259, 273, 574 N.E.2d 492
(1991), paragraph two of the syllabus. When considering a challenge to the weight of
the evidence, the court must review the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of the witnesses, and determine
whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and
created a manifest miscarriage of justice. State v. Thompkins, 78 Ohio St. 3d 380,
387, 678 N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio App. 3d 172, 485
N.E.2d 717 (1st Dist.1983), paragraph three of the syllabus.
{¶9} Ham first contends that the evidence was insufficient because he had
not intended to threaten Eason, and she had acknowledged that the messages had
been intended to get her attention.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶10} R.C. 2917.24(B)(1) states, “No person shall make or cause to be made a
telecommunication, or permit a telecommunication to be made from a
telecommunications device under the person’s control, with purpose to abuse,
threaten, or harass another person.” The inquiry is not whether the recipient of the
communication was in fact threatened, harassed, or annoyed by the communication,
but rather, whether the purpose of the person who made the communication was to
threaten the person called. See State v. Kronenberg, 8th Dist. Cuyahoga No. 101403,
2015-Ohio-1020, ¶ 15, citing State v. Bonifas, 91 Ohio App. 3d 208, 211-212, 632
N.E.2d 531 (3d Dist.1993). A defendant’s purpose or intent to threaten may be
established by the facts and circumstances surrounding the communication.
Kronenberg at ¶ 15.
{¶11} A person acts purposely “when it is his specific intention to cause a
certain result, or, when the gist of his offense is a prohibition against conduct of a
certain nature, regardless of what the offender intends to accomplish thereby, it is
his specific intention to engage in conduct of that nature.” R.C. 2901.22(A). The
Ohio Supreme Court has defined “threat” as representing “a range of statements or
conduct intended to impart a feeling of apprehension in the victim, whether of bodily
harm, property destruction, or lawful harm, such as exposing the victim's own
misconduct.” State v. Cress, 112 Ohio St. 3d 72, 2006-Ohio-6501, 858 N.E.2d 341, ¶
39.
{¶12} Here, the state submitted exhibits showing that Ham had sent threats
to Eason through Facebook Messenger. The exhibits show numerous messages that
can be construed as threats, and the court specifically found that the statement, “you
a dead bitch,” was a threat. The evidence was sufficient to prove that Ham had
intended to convey a threat.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶13} With respect to the manifest weight of the evidence, Ham primarily
argues that Eason’s testimony was not credible. However, it is well settled law that
matters as to the credibility of witnesses are for the trier of fact to resolve. See State
v. Railey, 2012-Ohio-4233, 977 N.E.2d 703, ¶ 14 (1st Dist.). Here, the trial court
believed Eason’s testimony and her testimony provided sufficient evidence to
support his telecommunications-harassment conviction. Based upon our review of
the record, we cannot say that the court clearly lost its way and created such a
manifest miscarriage of justice that we must reverse Ham’s conviction and order a
new trial. We overrule Ham’s sole assignment of error.
Conclusion
{¶14} Finding no merit to Ham’s assignment of error, we affirm the
judgment of the trial court.
Judgment affirmed.
CROUSE and WINKLER, JJ., concur.
Please note:
The court has recorded its own entry this date.
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