State v. Conley , 2021 Ohio 2638 ( 2021 )

[Cite as State v. Conley, 2021-Ohio-2638.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
STATE OF OHIO,
CASE NO. 8-20-55
PLAINTIFF-APPELLEE,
v.
SHAWN M. CONLEY, OPINION
DEFENDANT-APPELLANT.
Appeal from Logan County Common Pleas Court
Trial Court No. CR 19 08 0233
Judgment Affirmed
Date of Decision: August 2, 2021
APPEARANCES:
William T. Cramer for Appellant
Alice Robinson-Bond for Appellee
Case No. 8-20-55
WILLAMOWSKI, P.J.
{¶1} Defendant-appellant Shawn Conley (“Conley”) brings this appeal from
the judgment of the Court of Common Pleas of Logan County convicting Conley of
one count of menacing by stalking. Conley claims on appeal that the trial court
erred 1) by admitting evidence of prior bad acts; 2) that his conviction was not
supported by sufficient evidence; and 3) the conviction was against the manifest
weight of the evidence. For the reasons set forth below, the judgment is affirmed.
{¶2} On August 13, 2019, the Logan County Grand Jury indicted Conley on
one count of menacing by stalking in violation of R.C. 2903.211(A)(1), (B)(2)(d), a
felony of the fourth degree, and one count of menacing by stalking in violation of
R.C. 2903.11(A)(1), (B)(2)(e), a felony of the fourth degree. Doc. 6. Conley
entered pleas of not guilty to both counts. Doc. 14. Before trial, Conley filed a
motion in limine to restrict admission of his prior bad acts and mention of the civil
protection order (“CPO”). Doc. 163. On August 11, 2020, the trial court granted
the motion in limine as to the civil protection order, but denied it as to the prior bad
acts. Doc. 168.
{¶3} A jury trial was held on August 12 and 13, 2020. Doc. 180. During the
trial, the following evidence was presented. Kristen Conley (“Kristen”) testified
that she was Conley’s ex-wife. Tr. 35. Kristen testified that on November 20, 2018,
Conley had grabbed her wrists and shoved her against the counter, resulting in a
new tattoo bleeding, marks, and bruises. Tr. 36. She chose not to press charges
-2-
Case No. 8-20-55
because Conley indicated he would get “help”. Tr. 37. Kristen also testified that
Conley had struck her daughter on her hip leaving a bruise in 2019. Tr. 38. On
cross-examination, Kristen admitted that charges were filed against Conley for
when he grabbed her wrist leaving a mark, but he was not convicted. Tr. 45. She
also admitted the injury to her daughter was the result of Conley disciplining the
child by spanking. Tr. 48. When asked, Kristen admitted that she did not believe
Conley was dangerous. Tr. 49.
{¶4} Frederick Otterbein (“Otterbein”) testified that he is the district asset
protection manager for Kroger and had worked for Kroger for 42 years. Tr. 55.
Otterbein testified that there is security video in the stores, but no audio. Tr. 56. He
identified Exhibit 1 as security footage from the Kroger checkout. Tr. 66. He also
identified Exhibit 2 as security footage from the Kroger liquor department. Tr. 66.
{¶5} C.B., the victim, testified that in October of 2018, she was sixteen years
of age. Tr. 76. At that time, she worked part time at the Kroger store in
Bellefontaine as a cashier. Tr. 77. C.B. first met Conley two weeks after she started
working at Kroger. Tr. 78. The first time she met him she was checking out his
groceries and he started talking to her about an injury she had to her wrist which
required her to wear a brace. Tr. 79. When C.B. handed the receipt to Conley, he
grabbed her wrist and told her to keep the boys away from her. Tr. 79. C.B. thought
this was a strange thing to say. Tr. 80. Another time, C.B. was wearing a necklace,
which had a picture of her and her boyfriend in it. Tr. 80. Conley asked her who
-3-
Case No. 8-20-55
he was and when she told him it was her boyfriend, he told her to make sure the
boyfriend treated her right. Tr. 80. These interactions made C.B. feel
uncomfortable. Tr. 81. Conley would make it a point to come through her line and
it made her uncomfortable enough that she reported it to her manager. Tr. 81.
{¶6} One incident involved Conley going to the self-checkout with one item.
Tr. 82. When he saw C.B. come back from her break to work a register, he left the
self-checkout and got into her line behind other people. Tr. 82. Conley overheard
another worker make a comment about C.B. and her brother-in-law and became
angry. Tr. 84. Conley told her bagger to make sure to keep the boys away from her
and to protect her. Tr. 85. When Conley would pay for items with cash, his hand
would linger on C.B.’s or he would try to grab her hands. Tr. 86. C.B. told her
coworkers about this behavior and they would try to help her avoid Conley. Tr. 86.
When coworkers saw him approaching her register, they would send her on break
or send her to stock shelves so she would not be interacting with him. Tr. 86. After
Conley’s comment to the bagger, management decided to remove her from the floor
when he came into the store. Tr. 87. This occurred 20-30 times between October
2018 and June 2019. Tr, 87. On one occasion, she had to wait approximately an
hour and a half because Conley saw her going on break and waited for her to come
back. Tr. 88. When she came down from the break with the manager escorting her
after that amount of time, she saw Conley still in the store with only a few random
items. Tr. 89.
-4-
Case No. 8-20-55
{¶7} On June 12, 2019, C.B. was helping bag for another cashier. Tr. 89, 91.
Conley came in the exit doors, pinched her bra strap, and then continued to try and
have a conversation with C.B. Tr. 90. The State then showed a video of this
incident from Exhibit 1. Tr. 90. Conley told C.B. that he had seen her the previous
day in her father’s truck. Tr. 91. This encounter caused C.B. to be worried and
become shaky. Tr. 91-92. A coworker then came over to take her place and told
her to go hide so that Conley could not get to her. Tr. 92.
{¶8} On another occasion, C.B. was waiting in her car to go in the store and
clock in because she was early. Tr. 94. C.B. felt like someone was watching her
and looked in her mirror. Tr. 94. Conley was standing behind her car smoking a
cigarette. Tr. 94. When C.B. got out of the car, Conley started asking her about her
future plans and tried to give her a hug. Tr. 94. C.B. testified that she put her head
down and kept walking. Tr. 94. On other occasions, Conley would follow C.B. into
the parking lot when her shift was over. Tr. 96. C.B. testified that on multiple
occasions, Conley’s car would be parked next to hers, regardless of which vehicle
she had driven. Tr. 96. In the two months before she obtained the restraining order,
this was happening almost every time she worked. Tr. 97.
{¶9} C.B. testified that one day she was going to a nail appointment. Tr. 97.
Conley saw her and stopped his vehicle in an intersection in front of her and tried
to have a conversation with her. Tr. 97-98. C.B. rolled up her window and ignored
-5-
Case No. 8-20-55
him. Tr. 98. She could not pull away because he was blocking her path. Tr. 98.
This interaction made C.B. fearful because it was close to her home. Tr. 98.
{¶10} C.B. testified that in most of the encounters, she just tried to ignore
Conley. Tr. 99. She would brush off the conversation and focus on his groceries.
Tr. 99. Sometimes when she did not acknowledge him, Conley would comment
that she did not seem happy or tell her to smile more. Tr. 99. Eventually her
coworkers would intervene to allow her to get away from him. Tr. 100. The male
coworkers would walk her to her car at night to protect her in case he was out there
waiting for her. Tr. 100. C.B. testified that when Conley came into store, her hands
would start shaking and she would start feeling nauseous. Tr. 100. C.B. testified
that instead of going directly home from work, she would take different routes to
avoid being followed. Tr. 101. Eventually her fear led to her family purchasing a
security system for the home. Tr. 101. C.B. would constantly be checking over her
shoulder in public and developed a fear of going to large events because Conley
might be in the crowd. Tr. 101. C.B. was also concerned that Conley might do
something to her sisters. Tr. 102. Additionally, the stress of this caused her father
to lose weight and start tracking her phone to know where she was. Tr. 102. C.B.
even picked a college farther away from home to get away from Conley. Tr. 105.
C.B. testified that Conley should have known that his attentions were unwanted
because she was purposely being pulled from the register every time he came in the
store and she refused to speak with him. Tr. 105.
-6-
Case No. 8-20-55
{¶11} On cross-examination C.B. testified that she became uncomfortable
with Conley about two weeks after she first met him. Tr. 107. C.B. admitted that
her grades were not affected much. Tr. 109. C.B. did not seek a CPO until June of
2019. Tr. 114. C.B. admitted that she never told Conley to leave her alone and
never asked a coworker to tell Conley to leave her alone. Tr. 115. C.B. claimed
that she did not really discuss the issue with her family for several months because
she thought they would think she was overreacting. Tr. 121.
{¶12} T.B. testified that she is C.B.’s mother. Tr. 144. T.B. noticed that
C.B. had changed her personality as she was frequently looking over her shoulder
and did not want to go places alone. Tr. 145. On cross-examination, T.B. testified
that the tracker on the phone was not new, that it had always been there. Tr. 150.
The tracker was how T.B. noticed that C.B. was taking various routes home from
work. Tr. 150.
{¶13} Ch.B. testified that he is C.B.’s father. Tr. 156. He testified that before
this, C.B. was a carefree child, but since this started she is isolated and does not like
to go out in public. Tr. 156. Ch.B. indicated that he has lost 10-15 pounds due to
the stress from worrying about C.B. Tr. 157-58. Ch.B. admitted on cross-
examination that there have been no violations of the CPO. Tr. 160.
{¶14} Julie Litton (“Litton”) testified that she was the store manager at
Kroger’s in Bellefontaine during the time in question. Tr. 166. When C.B.’s
supervisor informed Litton that C.B. was afraid of Conley, she came up with a
-7-
Case No. 8-20-55
procedure to protect C.B. Tr. 167. When Conley came into the store, C.B. was to
go to the manager’s office in the upstairs of the building. Tr. 167. This happened
four different times when Litton was present. Tr. 167. Litton watched Conley when
he was in the store and noted that he was “just roaming, not really shopping”, that
he appeared to be just watching C.B. Tr. 168. Litton did not speak with Conley
about his actions, but did contact the loss prevention team. Tr. 168. Litton did
approach Conley once and ask if she could help him. Tr. 169. He said no and said
he was there with his mother. Tr. 169. Litton testified that when Conley came into
the store, C.B. would become terrified. Tr. 170. Litton tried to help the situation
by having a staff member walk C.B. to her car. Tr. 171. On cross-examination
Litton admitted that they started watching for Conley because of C.B. reporting she
was very uncomfortable. Tr. 174. She did not have Conley removed from the store
because she thought that was the job of loss prevention or the police. Tr. 178.
{¶15} Ryan Althouse (“Althouse”) testified that he is the customer service
coordinator at Kroger in Bellefontaine. Tr. 183. He was one of C.B.’s supervisors.
Tr. 184. When Althouse’s supervisor learned what was happening, she told him to
remove C.B. from the floor when Conley entered the store until the issue was
resolved. Tr. 185. The process involved pulling C.B. from the register and the sales
floor until Conley had left the store. Tr. 186. C.B. was taken to any area in the store
that was not open to the general public. Tr. 186. This was probably done five to
ten times before C.B.’s parents and the police became involved. Tr. 187. Once C.B.
-8-
Case No. 8-20-55
was removed from the sales floor, Althouse would watch to see when Conley would
leave. Tr. 188. Althouse noticed that Conley would pace up near the entrance by
the registers to see if C.B. was back yet. Tr. 188. One time C.B. was on register
and they missed seeing Conley. Tr. 188-89. Conley got in C.B.’s line, so they sent
another employee over to take her place. Tr. 189. When these instances occurred,
C.B. would get upset and frustrated. Tr. 190. Althouse testified that her facial
expressions made it clear that she was upset. Tr. 190. When Conley touched C.B.’s
back, C.B. immediately came into the office with Althouse and looked visibly
distraught. Tr. 191. Althouse testified that no one from Kroger got involved
because it is Kroger’s policy to defuse the situation until law enforcement is
involved. Tr. 191-92. Althouse admitted on cross-examination that after the CPO
was issued, Conley has not been back to the store. Tr. 193. According to Althouse,
he first spoke with C.B. about what was happening in late May or early June 2019.
Tr. 195. Althouse has seen Conley speaking with other employees and customers
with no complaints from them. Tr. 195. Before May of 2019, Althouse had not
seen C.B. be removed from the sales floor due to Conley’s arrival. Tr. 197.
{¶16} Andrew Abraham (“Abraham”) testified that he was a front end
associate at Kroger for two years. Tr. 204. This job required him to supervise the
breaks for people and direct the cashiers. Tr. 205. Abraham testified that in winter
of 2019 he was instructed to start hiding C.B. every time Conley came into the store.
Tr. 206. Abraham noted that Conley seemed to pick C.B.’s register and then he
-9-
Case No. 8-20-55
would send someone over to take her place. Tr. 207. Abraham recalled that C.B.
acted distressed when Conley would come in the store. Tr. 208. She would become
nervous and her face would “go white.” Tr. 208. Abraham testified that on
occasion, Conley would come into the store and then leave with no purchases. Tr.
211.
{¶17} Blake Baughman (“Baughman”) testified that he worked at Kroger
from May 2018 until March 2020. Tr. 216. Baughman performed the tasks of
bagging, stocking shelves, and cashier. Tr. 217. After Baughman became aware of
who Conley was and that he was bothering C.B., he started noticing him. Tr. 217.
Baughman noted that Conley came in the store more than usual and would spend an
hour and a half there, only picking up four or five items. Tr. 217. This happened
on the days that C.B. was working. Tr. 218. Conley always went to where C.B.
was stationed. Tr. 218. When Conley was ready to check out, he always went for
C.B.’s lane rather than a random one. Tr. 219. Conley would attempt to make small
talk with C.B. before he would leave. Tr. 219. This would occur even if the other
lanes had shorter lines, choosing to wait 10-15 minutes instead. Tr. 219. Baughman
testified in either December 2018 or January 2019, Conley came up to him outside
Kroger and asked him where the “tall girl that works up front lives”. Tr. 220.
Baughman assumed he was talking about C.B. Tr. 220. In June of 2019, Baughman
saw C.B. come in to clock in for her shift. Tr. 223. C.B. was shaking and claimed
that Conley had come up to her car in the parking lot. Tr. 223. Although Baughman
-10-
Case No. 8-20-55
did not see it happen, he testified that C.B. looked shocked and nervous. Tr. 224.
On cross-examination, Baughman admitted that he was only “90%” sure the man
who approached him to ask about the tall girl was Conley or that he was referring
to C.B. Tr. 225. Baughman learned about the situation when C.B. told him in
December 2018. Tr. 226. When C.B. told him, Baughman told her to talk to the
manager. Tr. 226. Baughman admitted that he had never personally seen Conley
approach C.B. Tr. 229.
{¶18} Jimmy Elkins (“Elkins”) testified that he worked as the store recruiter
and manager on duty for the Kroger store in Bellefontaine. Tr. 233. Elkins’
daughter is married to Conley’s brother, so he knows who Conley is. Tr. 234.
Elkins first became aware of the issue when Baughman pointed Conley out to him
as the man who was “stalking” C.B. Tr. 235. As the manager on duty, Elkins
noticed several times that Conley went to C.B.’s line. Tr. 235. After speaking with
Litton, Elkins was instructed to remove C.B. from the floor any time Conley got in
her line. Tr. 236. Elkins remembered this occurring two or three times. Tr. 236.
Every time Elkins saw Conley in the store, he went for C.B.’s line even though there
were several lanes open. Tr. 236. When he would remove C.B., she would look
frightened. Tr. 236. At the end of C.B.’s shift, Elkins, Baughman or Althouse
would walk her to her car in case Conley was in the parking lot. Tr. 236. Elkins
indicated on cross-examination that he informed Litton of the issue the day after he
was told. Tr. 238. Elkins denied telling Litton about Conley’s criminal past at that
-11-
Case No. 8-20-55
time, but did tell her later. Tr. 239. Elkins also told C.B. about Conley’s past when
she told him about him following her in her car. Tr. 240. Elkins admitted that
Conley had not come into the store since the CPO was issued. Tr. 248.
{¶19} Debbie Headley (“Headley”) testified that she had worked at Kroger
during the time at issue in this case. Tr. 261. On June 12, 2019, Headley was
working in the liquor department. Tr. 261. Headley identified Exhibit 2 as a video
of an interaction she had with Conley on that day. Tr. 263. Headley testified that
Conley came in the liquor department agitated and wanted to write down his phone
number for C.B. Tr. 264-65. Conley had told Headley that he knew where C.B.
lived, what vehicles she drove, and what time she got off work. Tr. 266. Conley
wanted to give C.B. his number so that he would not have to wait outside until she
got off work at 10:00. Tr. 266. Headley testified that Conley was agitated because
he did not think C.B.’s boyfriend was good enough for her and wanted to show her
what a “real man” was like. Tr. 267. When Conley left her department, Headley
called the manager to warn them because she was concerned about C.B. Tr. 269.
{¶20} Andy Loehr (“Loehr”) of the Bellefontaine Police Department
investigated the complaint that T.B. made to the police. Tr. 277, 279. Loehr
attempted to make contact with Conley, but was unable to do so. Tr. 280. While
C.B. was telling him what had happened, she became more nervous and started to
slump in her seat. Tr. 281. The first time he was able to speak with Conley was at
the hearing on the CPO. Tr. 283. Loehr admitted on cross-examination that no one
-12-
Case No. 8-20-55
had communicated directly with Conley that he needed to stop his behavior. Tr.
288. Since the CPO has been issued, Conley has complied with it. Tr. 288.
{¶21} Detective Brent Joseph (“Joseph”) of the Logan County Sheriff’s
Office testified that he knew Conley from an aggravated burglary case he
investigated in 2004 where Conley admitted breaking into the home of a 17 year
old victim and scaring her by coming into her bedroom wearing a mask and gloves
while holding what appeared to be a pistol. Tr. 290-293. When Conley heard her
scream and saw her on the phone, he fled from the scene. Tr. 293. On cross-
examination, Joseph admitted that Conley was 18 or 19 years old at that time. Tr.
294. Although Conley avoided answering the questions at the beginning, he soon
gave an accurate statement of what happened. Tr. 295. Joseph admitted that in his
opinion, Conley was honest with him about what had happened. Tr. 295. Joseph
also admitted that Conley’s maturity at that time was that of an average 18 or 19
year old “boy”. Tr. 296.
{¶22} At the conclusion of the trial, the jury returned verdicts of guilty on
both counts. Doc. 180. The trial court held a sentencing hearing on September 17,
2020. Doc. 187. At the hearing, the trial court determined that the two menacing
by stalking counts were allied offenses and the State chose to proceed to sentencing
on Count 2. Doc. 187. The trial court sentenced Conley to serve a prison term of
18 months in prison. Doc. 187. Conley filed a timely notice of appeal. Doc. 200.
On appeal, Conley raises the following assignments of error.
-13-
Case No. 8-20-55
First Assignment of Error
The trial court abused its discretion in admitting evidence of
[Conley’s] prior acts of violence.
Second Assignment of Error
Conley’s due process rights were violated by a conviction for
menacing by stalking that was not supported by sufficient
evidence.
Third Assignment of Error
Conley’s conviction for menacing by stalking was not supported
by the weight of the evidence.
Admission of Evidence
{¶23} In the first assignment of error Conley claims that the trial court erred
by admitting evidence of his prior acts of violence. Generally the admissibility of
other acts evidence rests within the sound discretion of the trial court and will not
be disturbed on appeal absent an abuse of the discretion that created material
prejudice. State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528,
¶ 14 and State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 66.
“An abuse of discretion exists when a decision is unreasonable, arbitrary, or
unconscionable.” State ex rel. Sales v. Ohio Public Employees Retirement Board,
156 Ohio St.3d 433, 2019-Ohio-1568, 128 N.E.3d 216, ¶ 15. “Absent an abuse of
discretion, as well as a showing that the appellant suffered material prejudice, an
appellate court will not disturb a trial court's ruling as to the admissibility
of evidence.” State v. Rollison, 3d Dist. Marion No. 9-09-51, 2010-Ohio-2162, ¶
-14-
Case No. 8-20-55
32. “When applying the abuse of discretion standard, an appellate court may not
substitute its judgment for that of the trial court.” Id.{¶24} Conley claims that the trial court erred by admitting evidence of his
prior violent acts. Generally, all relevant evidence is admissible. Evid.R. 402. “
‘Relevant evidence’ means evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.” Evid.R. 401. Relevant
evidence must be excluded “if its probative value is substantially outweighed by the
danger of unfair prejudice, of confusion of the issues, or of misleading the jury.”
Evid.R. 403(A). Although evidence of other crimes, wrongs, or acts generally are
not admissible to show the character of a person, they may be admitted for other
purposes. Evid. R. 404(B). This Court notes that one of the elements to be proven
by the State in Count 2 of the indictment is that the “offender has a history of
violence toward the victim or any other person or a history of other violent acts
toward the victim or any other person.” R.C. 2903.211(B)(2)(e). Since evidence of
a history of violent acts towards a person is required to prove the menacing by
stalking offense as set forth in Count 2, the trial court did not abuse its discretion by
allowing it to be admitted in this case. The first assignment of error is overruled.
Sufficiency of the Evidence
{¶25} In the second assignment of error, Conley claims that the conviction
was not supported by sufficient evidence. The question of whether the evidence
-15-
Case No. 8-20-55
presented at trial is legally sufficient to support a verdict is a question of law. State
v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. Sufficiency
is basically a term of adequacy. Id.An appellate court's function when reviewing the sufficiency of
the evidence to support a criminal conviction is to examine the
evidence admitted at trial to determine whether such evidence, if
believed, would convince the average mind of the defendant's
guilt beyond a reasonable doubt. * * * Accordingly, “[t]he
relevant inquiry is whether, after viewing the evidence in a light
most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime proven beyond a
reasonable doubt.” * * * “In deciding if the evidence was
sufficient, we neither resolve evidentiary conflicts nor assess the
credibility of witnesses, as both are functions reserved for the trier
of fact.”
State v. Adkins, 3d Dist. Allen No. 1-19-71, 2020-Ohio-6799, ¶ 37 (citations
omitted).
{¶26} The jury convicted Conley of two counts of Menacing by Stalking.
Count 1 was merged into Count 2 at the sentencing hearing. When a conviction is
merged with another for the purposes of sentencing, there is no longer a conviction
to be vacated, so the sufficiency of the evidence to support the conviction need not
be addressed as long as the evidence is sufficient to support the selected conviction.
State v. Turner, 2nd Dist. Clark No. 2017-CA-78, 2019-Ohio-144, ¶ 22. Thus, if the
evidence is sufficient to support a conviction under Count 2, this Court need not
address the sufficiency of the evidence as to Count 1.
-16-
Case No. 8-20-55
{¶27} The State was required to provide evidence that Conley 1) engaged in
a pattern of conduct that 2) would cause mental distress to another person or a family
member of that person and 3) that Conley had a history of violent acts towards
another person. R.C. 2903.211(A)(1), (B)(2)(e). Many witnesses testified to the
pattern of conduct in which Conley engaged and to the effect it had on C.B.
Witnesses also testified that Conley should have realized that C.B. did not want his
attention by the nonverbal reactions C.B. had and the fact that she repeatedly
attempted to avoid him, including refusing to speak with him, refusing to make eye
contact with him, pretending she did not see or hear him when outside the store, and
immediately leaving the sales floor when Conley would arrive at the store.
Testimony was given that Conley had previously broken into the home of another
young woman while wearing a mask, gloves, and carrying what looked like a pistol.
The victim in that case felt that she had been threatened with violence and was very
afraid. Viewing this evidence in a light most favorable to the State, the evidence is
sufficient to support the conviction for menacing by stalking as set forth in Count 2.
Since the evidence was sufficient to support this conviction, we need not consider
the conviction in Count 1. The second assignment of error is overruled.
Manifest Weight of the Evidence
{¶28} Conley’s final assignment of error claims that the judgment was
against the manifest weight of the evidence. When reviewing a judgment to
determine if it is against the manifest weight of the evidence, an appellate court
-17-
Case No. 8-20-55
“review[s] the entire record, weighs the evidence and all reasonable inferences,
considers the credibility of witnesses and determines whether in resolving conflicts
in the evidence, the jury 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.
Mendoza, 137 Ohio App.3d 336, 738 N.E.2d 822 (2000). See, also, State v.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). A new trial should be
granted only in the exceptional case in which the evidence weighs heavily against
conviction. Thompkins at 387, 678 N.E.2d 541. Although the appellate court acts as
a “thirteenth juror,” due deference to the findings made by the fact-finder must still
be given. State v. Moorer, 3d Dist. 13–12–22, 2013-Ohio-650, ¶ 29.
{¶29} In Conley’s case, ample testimony was presented as to the effect
Conley’s behavior had on C.B. C.B. was nervous every time Conley was around,
had to hide in the store when he came in, took different routes home to avoid being
followed, had to be escorted to her car when she left work, and was frequently
looking over her shoulder to make sure Conley was not around. C.B. and her family
testified that she felt sick and was more withdrawn since Conley started his behavior
of frequently coming in the store and trying to interact with her. C.B. testified that
Conley stopped in the middle of an intersection preventing her from driving away
while trying to talk to her. Despite her ignoring him and hiding when he came in
the store, Conley persisted with his conduct.
-18-
Case No. 8-20-55
{¶30} Conley argues that he lacked the mens rea because he did not know
that his attentions were unwanted. For the jury to convict, Conley must have been
found to act knowingly. The trial court defined knowingly for the jury as follows.
A person acts knowingly, regardless of purpose, when the person
is aware that the person’s conduct will probably cause a certain
result or be of a certain nature. A person has knowledge of
circumstances when the person is aware that the person’s conduct
will probably cause a certain result or be of a certain nature. A
person has knowledge of circumstances when the person is aware
that such circumstances probably exist. Because you cannot look
into the mind of another, knowledge is determined from all of the
facts and circumstances in evidence.
You will determine from these facts and circumstances whether
or not there exists at the time in the mind of the defendant an
awareness of the probability that he would cause [C.B.] to believe
that he would cause physical harm to [C.B.] or a family or
household member of [C.B.], or cause mental distress to [C.B.] or
a family or household member of [C.B.]
***
* * * The defendant’s responsibility is not limited to the
immediate or most obvious result of the defendant’s fail – act or
failure to act. The defendant is also responsible for the natural
and foreseen consequences or results that follow in the ordinary
course of events from the act or failure to act.
Tr. 330-331.
{¶31} Here, the witnesses all admitted that no one at any time told Conley to
stay away from C.B. or to leave her alone. All of the witnesses also admit that once
the CPO was in place, Conley did not violate it. However, all of this evidence was
before the jury and they concluded that Conley knew that his attentions were not
-19-
Case No. 8-20-55
wanted based upon the nonverbal actions taken by C.B. and the fact that every time
he came in the store, C.B. was removed from the floor and did not return while he
was present, no matter how long he was there. A review of the record before this
Court does not show that the jury clearly lost its way, that the evidence weighs
heavily against conviction, or that a manifest miscarriage of justice occurred. Thus,
the convictions are not against the manifest weight of the evidence. The third
assignment of error is overruled.
{¶32} Having found no prejudicial error in the particulars assigned and
argued, the judgment of the Court of Common Pleas of Logan County is affirmed.
Judgment Affirmed
ZIMMERMAN and SHAW, J.J., concur.
/hls
-20-