In re Q.W. , 99 N.E.3d 944 ( 2017 )

[Cite as In re Q.W., 2017-Ohio-8311.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104966
IN RE: Q.W.
Minor Child
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. DL 15115302
BEFORE: Stewart, J., Kilbane, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: October 26, 2017
ATTORNEYS FOR APPELLANT
Christopher R. Lenahan
2035 Crocker Road, Suite 104
Westlake, OH 44145
R. Brian Moriarty
55 Public Square, 21st Floor
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
Sean Kilbane
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, J.:
{¶1} Appellant Q.W., a minor, appeals the judgment of the juvenile court
adjudicating her delinquent for committing two acts of telecommunications harassment,
in violation of R.C. 2917.21(A)(3), for sending threatening text messages and making
threatening phone calls — acts that would be first-degree misdemeanors if committed by
an adult. The court imposed a community control sanction of six months under the
supervision of the probation department. In two assignments of error, Q.W. challenges
the sufficiency of the evidence and argues that her delinquency adjudications are against
the manifest weight of the evidence.
{¶2} At trial the state’s evidence established the relevant background facts. The
victim’s minor daughter and Q.W. were involved in a romantic relationship. The victim
was not happy about this relationship, and her displeasure culminated in a verbal and
physical altercation with her daughter. The daughter was subsequently arrested.
{¶3} Over the course of the next several days, the victim received a barrage of
threatening text messages from a telephone number she did not recognize. These
messages contained threats to both the victim’s life and property. There were specific
references to the manner of death the person would inflict, for example, slicing the
victim’s throat and bashing her head with a brick. There were also specific references to
burning down the victim’s house and blowing up her car.
{¶4} In the midst of this stream of messages, and from the same phone number, the
victim testified to receiving threatening phone calls. The caller threatened to burn down
the victim’s house and set her car on fire. The victim testified that she recognized the
caller’s voice as being Q.W.’s.
{¶5} In response to the messages and calls, the victim contacted Q.W.’s father,
made a police report, and sought a restraining order against Q.W. When asked why she
contacted the police, the victim responded “[b]ecause it was nonstop.”
{¶6} In her first assignment of error, Q.W. challenges the state’s evidence as
insufficient to support the court’s finding that she violated R.C. 2917.21(A)(3). She
argues that the evidence did not establish a link between her and the threatening
communications. We disagree.
{¶7} This court evaluates challenges to the sufficiency and manifest weight of the
evidence in delinquency adjudications under the same standards of review that apply to
criminal convictions. In re C.A., 8th Dist. Cuyahoga No. 102675, 2015-Ohio-4768, ¶ 47.
In the context of a sufficiency challenge, we review the evidence “‘in a light most
favorable to the prosecution,’” to determine whether “‘any rational trier of fact could have
found the essential elements of the crime proven beyond a reasonable doubt.’” In re
S.H., 8th Dist. Cuyahoga No. 100529, 2014-Ohio-2770, ¶ 17, quoting State v. Leonard,
104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77. When evaluating such a
claim, we do not consider a witness’s credibility. State v. Williams, 8th Dist. Cuyahoga
No. 98528, 2013-Ohio-1181, ¶ 27. Instead, we consider whether the admitted evidence,
“if believed, would convince an average mind of the defendant’s guilt beyond a
reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 573 N.E.2d 492 (1991), paragraph
two of the syllabus. “In essence, sufficiency is a test of adequacy.” State v. Thompkins,
78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).
{¶8} Q.W. was adjudicated delinquent for two counts of telecommunications
harassment in violation of R.C. 2917.21(A)(3), which in relevant part provides:
No person shall knowingly make or cause to be made a telecommunication,
or knowingly permit a telecommunication to be made from a
telecommunications device under the person’s control, to another, if the
caller * * * [d]uring the telecommunication, violates section 2903.21 of the
Revised Code.
Relevant to this case, R.C. 2903.21(A) provides “[n]o person shall knowingly cause
another to believe that the offender will cause serious physical harm to the person or
property of the other person * * *.”
{¶9} Te victim testified that she received a series of threatening text messages.
The court saw reproductions of the messages that the victim created using a screen
capture function on her phone. See State v. Roseberry, 197 Ohio App.3d 256,
2011-Ohio-5921, 967 N.E.2d 233, ¶ 75 (8th Dist.) (reproductions of text messages are
authenticated, introduced, and received into evidence through testimony of recipient).
The messages listed a specific phone number as the sender. The victim testified that the
threatening phone calls happened “in between” the message barrage and originated from
the same number. She identified Q.W. as the caller.
{¶10} The victim’s basis for this identification was that she had previously spoken
with Q.W. and recognized her voice. Further, the victim testified that the content of one
call confirmed to her that the caller was Q.W. The victim stated that the caller said “stuff
about the bond,” and knew the victim’s address. The significance of “the bond” is
unclear. It is also unclear how knowledge of the victim’s address demonstrates that the
caller was Q.W.
{¶11} The victim’s testimony was the only evidence linking Q.W. to the text
messages and telephone call(s). The state offered no telephone call logs, cellular
triangulation information, or any other kind of records or evidence to connect the
telephone number to Q.W. It seems as though this kind of evidence would have been
important to the state in light of the fact that the victim did not approve of Q.W.’s
relationship with her daughter and that the victim and her daughter had an altercation that
culminated in the daughter being arrested. These facts notwithstanding, we cannot say
that the victim’s testimony alone was insufficient to establish that Q.W. violated the
statutes.
Where the only criminal behavior with which a defendant is charged is the
manner in which he conducted his portion of a telephone conversation, the
testimony of the person with whom the defendant allegedly had such
conversation is not alone sufficient to establish both the commission of the
crime and the identify of the defendant unless the witness testifies that he
actually recognized the voice on the telephone as belonging to the
defendant.
Bedford Hts. v. Tallarico, 25 Ohio St.2d 211, 267 N.E.2d 802 (1971), syllabus.
{¶12} Viewing the evidence in a light most favorable to the prosecution, a rational
trier of fact could have found that the state proved the essential elements of
telecommunications harassment beyond a reasonable doubt. There was evidence linking
Q.W. to the alleged calls and to the text messages by extension. Moreover, the court
could have sufficiently concluded Q.W. thereby knowingly caused the victim to believe
she would cause serious physical harm to her person or property based on the content of
the calls and messages. When asked why she filed a police report and sought a
restraining order against Q.W., the victim responded that nobody wants to be threatened
and that she had to “protect herself.” We overrule the first assignment of error.
{¶13} In her second assigned error, Q.W. challenges her delinquency adjudications
as being against the manifest weight of the evidence. She argues that in light of her
father’s rebuttal testimony that the court clearly lost its way. Again, we disagree.
{¶14} Addressing a challenge to the manifest weight of the evidence requires this
court to review the record, weigh the evidence and reasonable inferences drawn from it,
and consider witness credibility. In re D.W., 8th Dist. Cuyahoga No. 101116,
2014-Ohio-5038, ¶ 9. We determine whether the trier of fact clearly lost its way in
resolving conflicts in the evidence, thereby creating “such a manifest miscarriage of
justice” that we must reverse the decision, and order a new trial. (Citation omitted.) Id.The Supreme Court has admonished that a new trial based on a manifest weight
challenge is to be granted only in the “exceptional case in which the evidence weighs
heavily against the conviction.” Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 at 387,
quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶15} This is not such a case where the evidence weighs heavily against Q.W.’s
delinquency adjudication. Although the state’s case was based solely on the victim’s
testimony, the testimony was uncontroverted. And contrary to Q.W.’s assertion, her
father’s rebuttal testimony does not create a manifest weight issue. On direct
examination, Q.W.’s father testified that he provides a phone for Q.W. with a different
number than the one used to make the threatening text messages and calls. On
cross-examination, he also claimed that he checks his daughter’s phone “daily” or
“numerous times a day,” and that Q.W. would have told him if she sent threatening text
messages.
{¶16} Although the trial court found the father’s testimony to not be credible,
taking his testimony at face value creates no inconsistency. The state made no argument,
nor did the evidence show, that Q.W. necessarily used the phone her father provided to
commit the offenses. As such, his testimony created no conflict that the trial court had to
necessarily resolve, let alone constituted evidence that weighed heavily against the
adjudication and requiring a new trial. Accordingly we overrule Q.W.’s second
assignment of error.
{¶17} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the common pleas court — juvenile
division 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.
______________________________________________
MELODY J. STEWART, JUDGE
MARY EILEEN KILBANE, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR