RRGhasterPV5000

MEMORANDUM IN SUPPORT OF JURISDICTION

IN THE SUPREME COURT OF OHIO

City of Rocky River.

Appellee,

V.

Pamela Ghaster,

Appellant.

04

On Appeal from the CuyahogaCounty Court of Appeals,

Eighth Appellate District

Court of Appeals

Case No. CA-10-094559

MEMORANDUM IN SUPPORT OF JURISDICTION

OF APPELLEE CITY OF ROCKY RIVER

Michael J. O'Shea (0039330)

Michael J. O'Shea, Esq.(0039330)

michael@moshea.com

Rocky River Law Department

21012 Hilliard Blvd.

Rocky River, Ohio 44116(440) 895-3374 - phone(440) 895-3381 - faxRocky River Prosecutor

Attorney for Appellee

Kenneth D. Myers, Esq.75 Public Square - Suite 1300Cleveland, Ohio 44113(216) 241-3900(216) 621-9640 - fax

Attorney for Appellant

CD^^E ^ ^I^©MAR 17 2011

CLERK OF COURTSUPREME COURT OF OHIO

TABLE OF CONTENTS

Paae

EXPLANATION OF WHY THIS CASE IS A CASE OF

PUBLIC OR GREAT GENERAL INTEREST AND

INVOLVES A SUBSTANTIAL CONSTITUTIONAL OUESTION....... 1

STATEMENT OF THE CASE AND FACTS ...................... 1

I. Introduction .................................... 1II. Statement of the Facts and Case ................. 3III. Law ............................................. 8

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW........... 11

Sole Proposition of Law:

Ohio Courts can find a defendant guilty of aprobation violation even though the defendantis not charged or acquitted of the same conductwhich gave rise to the probation violation...... 11

CONCLUSION ........................................... 12

PROOF OF SERVICE ..................................... 13

APPENDIX

Judgment Entry and Opinion of the Cuyahoga CountyCourt of Appeals (February 10, 2011) No. 945592011-Ohio-600

State v. Ghaster, 2009 Ohio 2117 (Ohio Ct. App., CuyahogaCounty May 7, 2009)

State v. Ghaster, 2009 Ohio 2134 (Ohio Ct. App., CuyahogaCounty May 7, 2009)

Rauser v. Ghaster, 2009 Ohio 5698 (Ohio Ct. App., CuyahogaCounty Oct. 29, 2009)

EXPLANATION OF WHY THIS CASE IS A CASE OF

PUBLIC OR GREAT GENERAL INTEREST AND

INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION

STATEMENT OF THE CASE AND FACTS

I. Introduction.

The Eighth District Court of Appeals has issued a decision

concerning probation violation hearings, and burdens of proof to be

used in a probation violation hearings, that is contrary to well

settled Ohio law - a decision which has the potential to create a

significant amount problems for trial courts and their individual

probation officers and probation departments. In short, the Eighth

District Court of Appeals has held that if a defendant is acquitted

of (or not charged with) a crime that involves the same facts that

can also give rise to a probation violation, then it is double

jeopardy for the probation department to file and proceed on a

probation violation. If the law or novel legal precedent created

by the Eighth District Court of Appeals stands as the new law for

Cuyahoga County (or other courts in ohio), one can only assume that

each and every probationer:

(i) has not had criminal charges filed against him/her; and

(ii) who has been acquitted of charges, or

(iii) or had those charges dismissed,

will have a seeming valid argument that they cannot be found to be

Page 1 of 14

a probation violator.

This appeal is a fourth appellate trip in the Ohio courts for

Appellant Pamela Ghaster ("Ghaster") - all stemming from a long and

tortured legal process required by the ongoing criminal conduct of

Ghaster. Ghaster has twice unsuccessfully appealed her criminal

convictions in:

State v. Ghaster, 2009 Ohio 2117 (Ohio Ct. App., Cuyahoga

County May 7, 2009) (the "Intimidation/Obstruction Case"); and

State v. Ghaster, 2009 Ohio 2134 (Ohio Ct. App., Cuyahoga

County May 7, 2009)(the "Criminal Menacing Case").

However, the Cuyahoga County Court of Appeals affirmed her

convictions in both the Intimidation/Obstruction Case and in the

Criminal Menacing Case. Further, the Cuyahoga County Court of

Appeals also had to address the civil menacing by stalking

activities of Ghaster in the civil appeal of Rauser v. Ghaster,

2009 Ohio 5698 (Ohio Ct. App., Cuyahoga County Oct. 29, 2009)(the

"Civil Menacing Case") - in that appeal reversing a trial court's

improper decision that the same victims in the Criminal Menacing

Case (the Rauser family) were not entitled to the issuance of a

civil menacing protection order.

In her fourth trip to the Cuyahoga County Court of Appeals,

Ghaster appealed the decision of the Rocky River Municipal Court

which found that the pre-trial conduct she engaged in with Laurie

Rauser (the same victim in the Criminal Menacing Case and the Civil

Page 2 of 14

Menacing Case) was a violation of the terms of her probation in the

Intimidation/Obstruction Case. One of the unambiguous terms of

Ghaster's probation in the Intimidation/Obstruction Case was that

she have no contact with Mrs. Rauser and that she abide by the

pretrial temporary protection order issued in the Criminal Menacing

Case. Prior to and throughout the probation violation hearing,

Ghaster argued to the Court of Appeals that she could not be found

to be a probation violator if she was acquitted of a criminal

charge that involved the same conduct that gave rise to the

probation violation. Despite decades of court opinions from this

Court and other courts of appeals that have rejected that argument,

the Cuyahoga County Court of Appeals nevertheless agreed with that

argument, and reversed the trial court's decision. This is why

this Court needs to intervene.

Page 3 of 14

II. Statement of the Facts and Case.

While the Criminal Menacing Case was pending, and just a few

days before the trial in the Criminal Menacing Case, Ghaster twice

confronted Mrs. Rauser on the same day (in two different cities -

Rocky River and North Olmsted) while Mrs. Rauser was in her car

with her toddler child. Those actions resulted in Ghaster being

charged in two separate criminal RC 2919.27 TPO violation cases; to

wit:

1. City of Rocky River v. Ghaster, Rocky River Municipal

Court case number 08CRB724; and

2. City of North Olmsted v. Ghaster, Rocky River Municipal

Court case number 08CRB725,

(collectively, the "TPO Criminal Cases").

Ghaster tried the TPO Criminal Cases to the bench on October

20, 2008. The trial court took the matter as heard and submitted

on that day. By ruling dated January 8, 2009, the trial court

acquitted Ghaster of both TPO Cases. However, in that January 8,

2009 ruling, the trial court clearly indicated on the record that,

although the evidence of a TPO violation did not meet the "beyond

the reasonable doubt" standard to be applied in a criminal case, it

may, using the lesser burden of proof utilized in probation

violation hearings, constitute a violation of the terms of

Ghaster's probation in the Intimidation/Obstruction case.

On April 9, 2008 (before the trial in the TPO Criminal Cases)

Page 4 of 14

the Rocky River Probation Department filed a probation violation

complaint (the "First PV Complaint") in the

Intimidation/Obstruction Case against Ghaster. That complaint

alleged that Ghaster had failed to follow the recommendations of

her mental health providers as required by the probation

department. Further, on June 10, 2009 (after the trial and

verdict in the TPO Criminal Cases) the Rocky River Probation

Department filed a supplemental probation violation complaint (the

"Supplemental PV Complaint") in the Intimidation/Obstruction Case,

asserting two additional violations of Ghaster's probation; to wit:

(i) Ghaster was not to harass any neighbors or spread any false

rumors or engage in any stalking behavior and (ii) Ghaster was to

follow all terms of the criminal protection order that was issued

in the Criminal Menacing Case. These second two grounds asserted

in the Supplemental PV Complaint concerned Ghaster's conduct in

twice confronting Mrs. Rauser and involved the same facts that gave

rise to the TPO Criminal Cases.

A probation violation hearing was conducted on the First PV

Complaint on September 19, 2009. At the conclusion of that

hearing, Ghaster was found to be a probation violator (the trial

court specifically holding that Ghaster refused to get the mandated

mental health treatment required by the probation department) . The

Court did not impose any jail time and just continued Ghaster's

probation until December 10, 2010. Ghaster did not appeal this

Page 5 of 14

probation violation finding.

A probation violation hearing was thereafter conducted on the

Supplemental PV Complaint on December 8, 2009. At the conclusion

of that hearing, by way of a December 15, 2009 journal entry,

Ghaster was again found to be a probation violator (the trial court

specifically holding that the circumstances involving Ghaster's

confrontation encounter with Ms. Rauser was a violation of the

terms of Ghaster's probation). Again, the Court did not impose

any jail time, but did extend Ghaster's probation term until April

18, 2011. The trial court specifically rejected Ghaster's argument

that, in light of Ghaster's acquittal in the TPO Criminal Cases, a

probation violation holding on the Supplemental PV Complaint

constituted double jeopardy. The trial court's written opinion

specifically held that only the burden of proof had changed - and

that'there had not been any rejection of factual support for the

allegations. The trial court's written opinion stated:

12/08/2009 This matter came on to be heard this 8th day ofDecember, 2009, upon the filing of a Community ControlViolation Complaint on June 10, 2009 alleging the Defendant,on or about April 12, 2008, violated the terms and conditionsof her community control as set forth in the Court's JournalEntry of December 14, 2007. The Defendant was in court withCounsel, Kenneth D. Myers, the State of Ohio, City of RockyRiver was represented in court by Prosecutor Michael J.O'Shea. Evidence was presented on behalf of the State and atthe close of said presentation, the Defendant moved to dismissthe complaint with the reservation to present evidence if saidmotion was not well taken. The basis of the motion is allegedthat the conduct of the Defendant that serves as the basis ofthe community control violation was subject to a criminalcomplaint for a violation of a criminal protection order ofwhich the Defendant was tried and acquitted. The Defendant

Page 6 of 14

alleges that this proceeding upon the community controlviolation complaint would be a violation of the doublejeopardy clause. The general rule in Ohio for communitycontrol violations intersecting with criminal charges is thatcommunity control may be revoked even though criminal chargesbased on the same facts are dismissed, the defendant isacquitted, or the conviction is overturned, unless all factualsupport for the revocation is removed. Barnett v. Ohio AdultParole Authority, 81 Ohio App 3d 383, 387 (1998); Zanders v.Anderson, 74 Ohio St. 3d 269, 272 (1996) . Defendant citesState v. Sutherlin, 154 Ohio App 3d 765, 768 (2003) in supportof her proposition that once she is acquitted of criminalcharges from which the community control violation stemmed,those same facts cannot be used to find a community controlviolation, in that there no longer exists any factual supportfor her violation of community control. In Sutherlin, thedefendant's community control was revoked because of analleged robbery for which he was acquitted. However, on thebasis of the acquittal of the act of robbery, there existed nofactual support for revocation on that basis. The questionbecomes whether the criminal elements of violating terms of acriminal protection order and the community control elementsof the Defendant's contact with the complainant align. If theelements of these offenses are the same, then all factualsupport for Defendant's violation would be disposed of becausethe Defendant would be acquitted of the offenses thatconstitute the probation violation i.e that the Defendant

shall not commit any new offense. In the within matter, though

the Defendant was previously acquitted of Violating a

Protective Order, there was no removal of factual support for

a violation of her community control and therefore Double

Jeopardy will not attach. Since it is a condition of

Defendant's community control that she refrain from engaging

in contacting the complainant and not just refrain from

criminal activity, the community control violation allegations

are able to stand on their own totally independent of the

criminal aspect of the Criminal Protection Order violations.

Motion to dismiss on the ground of Double Jeopardy is DENIED.Hearing on Community Control Violation Complaint shallreconvene on December 14, 2009 at 1:30 p.m. in Court Room # 3.(Emphasis supplied).

Ghaster appealed the trial court's Supplemental PV Complaint

probation violation holding to the Cuyahoga County Court of

Appeals. Ghaster argued that, because she had been acquitted of

Page 7 of 14

the TPO Criminal Cases, the trial court's holding on the

Supplemental PV Complaint constituted double jeopardy. By

appellate opinion dated February 10, 2011 (the "Court of Appeals

Decision"), the Cuyahoga County Court of Appeals, despite a long

line of cases issued by this Court and other lower courts of

appeals, agreed with Ghaster, and reversed the trial court's

December 15, 2009 holding. Although the Court of Appeals Decision

did engage in some acknowledgment of Ohio law on this "double

jeopardy" argument, it essentially refused to apply that law - and

instead engaged in circumvention of the primary principles of

probation violation/double jeopardy law.

The Court of Appeals Decision relied upon the unsuited case of

State v. Sutherlin, 2003-Ohio-5265, 154 Ohio App.3d 765 for the

proposition that sometimes double jeopardy does bar a probation

violation finding once a defendant is acquitted of the same

conduct. However, as pointed out earlier in this memorandum, "all

factual support" for the probation violation must be removed (i.e.

the facts themselves must be proven to be unconditionally false).

The mere finding that the prosecution did not meet its burden of

proof in the underlying criminal case does not result in an

automatic finding that all factual support has been removed. As

stated earlier, the trial court, in its finding of not guilty,

clearly indicated on the record that, although the evidence of a

TPO violation did not meet the "beyond the reasonable doubt"

Page 8 of 14

standard to be applied in a criminal case, Ghaster's conduct, using

the lesser standard to be utilized in probation violation hearings,

may in fact constitute a probation.

III. Law.

This Court and a number of lower courts of appeals have

ciearly held that there is no requirement that a defendant be

convicted beyond a reasonable doubt in order for the same facts to

constitute a probation violation. The burden of proof in a

probation violation is significantly less than beyond a reasonable

doubt. Probation may be revoked even though criminal charges

based on the same facts are dismissed, the defendant is acquitted

or the conviction is overturned, unless "all factual support" for

the revocation is removed, and the offender is required to plead

specific facts to show that all factual support is removed from the

revocation. To justify probation revocation in a given instance,

the evidence presented at the revocation hearing must be of a

"substantial" nature. See Duganitz v. Ohio Adult Parole

Auth.(1996), 77 Ohio St. 3d 190; Flenoy v. Ohio Adult Parole Auth.

(1990), 56 Ohio St. 3d 131, 564 N.E.2d 1060; Barnett v. Adult

Parole Auth.(1998), 81 Ohio St.3d 385; Zanders v. Anderson (1996),

74 Ohio St. 3d 269; State v. Jackson, 2010 Ohio 2836; State v.

Patierno, 2009 Ohio 410; State v. McKeithen, 2009 Ohio 84; State v.

Favors, 2008 Ohio 6361; State v. Scheck, 2008 Ohio 5314; State v.

Page 9 of 14

Bradley, 2007 Ohio 7134; State v. Ryan, 2007 Ohio 4743; State ex

rel. State v. Buxton, 1999 Ohio App. LEXIS 1654 (attached hereto);

and State v. Jones, 1995 Ohio App. LEXIS 6037 (Van Wert County Dec.

19, 1995) Thus, there is no need for the prosecution to prove the

probation violation beyond a reasonable doubt.

A reading of all of these cases reveals that "all factual

support" would mean that essentially all facts underlying the

criminal complaint/indictment were found to be untrue or completely

unfounded. The mere fact that a defendant was found not guilty by

a fact finder based upon the "beyond a reasonable doubt" standard

does not mean that a different subsequent proceeding with a lower

standard of proof and a different fact finder might reach a

different result.

Further, as all these cases collectively indicate, there can

be other supplemental facts (i.e. in addition to the criminal trial

facts) upon which a trial court can base a probation violation. In

Barnett, supra, this Court affirmed a trial court's probation

violation holding because a defendant had been driving while

drinking - regardless of the fact that the manslaughter criminal

trial which involved drinking and driving had resulted in an

acquittal. In State v. Jackson, supra, this Court held that the

mere fact that a defendant was found to have a knife, and had used

the knife on the victim (even though found not guilty of robbing

that victim with the knife), was enough to constitute a probation

Page 10 of 14

violation. In State v. Buxton, supra, the facts at issue were not

even su_fficient to permit a grand jury to indict the defendant

(obviously a standard far less than beyond a reasonable doubt).

Nevertheless, it was permissible for the trial court to revoke the

defendant's probations after it conducted a full evidentiary

hearing (i.e. witnesses and exhibits) and determined the

credibility and quality of that eviden.ce.

Further, as stated in State v. Jones, supra, a trial court

does not even have to wait until after a defendant goes to trial to

conduct a probation violation hearing, and, thereafter, find the

defendant to be a probation violator. See also City of Cleveland

v. W. Shore Realtv, Inc., 2007 Ohio 6849 (Cuyahoga) - quoting State

v. Burnside, 2000 Ohio App. LEXIS 2917 (Cuyahoga County June 29,

2000) . See also State v. Starcic, 1998 Ohio App. LEXIS 2411

(Cuyahoga County June 4, 1998); and State v. Mathis (Apr. 16,

1987), Cuyahoga App. No. 51882, 1987 Ohio App. LEXIS 6903.

Page 11 of 14

ARGUMENT IN SUPPORT OF THE PROPOSITIONS OF LAW

Sole Proposition of Law:Ohio Courts can find a defendant guilty of aprobation violation even though the defendantis not charged or acquitted of the same conductwhich gave rise to the probation violation

As set forth above, the burden of proof in a probation

violation is significantly less than beyond a reasonable doubt.

Probation may be revoked even though criminal charges based on the

same facts are dismissed, the defendant is acquitted or the

conviction is overturned, unless "all factual support" for the

revocation is removed, and the offender is required to plead

specific facts to show that all factual support is removed from the

revocation.

The reasons behind this long line of cases are very

compelling. If the novel legal precedent in the Court of Appeals

Decision (combined with a strained reading of State v. Sutherlin,

supra) stands as the new law for Ohio, one can only image how each

and every defendant who is on probation will manipulate the

probation process to claim that they are not subject to a probation

violation complaint and hearing - and thus thwart the very purpose

and principle of probation. If a probationer tests positive for

drugs while visiting his/her probation officer, and is not charged

with drug abuse (or is acquitted of drug charges), he/she can now

argue that he/she cannot be charged with a probation violation. If

Page 12 of 14

a probationer engages in any conduct that could also be prosecuted

as a crime - and is not prosecuted or convicted of that crime -

he/she can now argue that he/she cannot be charged with a probation

violation. If a probationer has been charged with a crime and the

prosecutor's office decides to dismiss criminal charges based upon

a plea deal or recent lack of evidence, the probationer will be

able to argue that he/she cannot be charged with a probation

violation. The list is somewhat endless - and, given the ease with

which case law can be gathered today, the Court of Appeals Decision

will spur endless barriers for probation officers and probation

departments.

Ohio law makes it clear that (i) the failure to file charges,

(ii) the dismissal of charges or (iii) the acquittal of the

charges, does not bar a trial court from finding a defendant to be

a probation violator. The standard of proof is not the same.

Given the fact that the trial court made it clear that the

acquittal was only because of the burden of proof issue, it is

without real question that the Court of Appeals Decision is wrong

as a matter of long standing Ohio law. If the Court of Appeals

Decision is left standing, probation departments and trial courts

my essentially be powerless to enforce many of their significant

probation conditions and regulations - creating a fair amount of

probation chaos throughout Ohio.

Page 13 of 14

CONCLUSION

Accordingly, Appellee prays that this Court take jurisdiction

of this appeal to once again clarify that a defendant may be found

to be a probation violator even if that defendant is acquitted of

a criminal case arising from the same set of facts.

Michael J. O'SH.ea, Esq.(0039330)michael@moshea.comRocky River Law Department21012 Hilliard Blvd.Rocky River, Ohio 44116(216) 470-8098 - phone(216) 479-7687 - faxRocky River Prosecutor

SERVICE

I hereby certify that a copy of the foregoing was erved u onthe following persons this (15 day of m o>CG+2011, by regular U.S. Mail:

Kenneth D. Myers, Esq.6100 Oak Tree Blvd. - Suite 200Independence, Ohio 44131Attorney for Appellant

Page 14 of 14

04!Gvurt of Appeat'5 of ObtoEIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINIONNo. 94559

CITY OF ROCKY RIVER

PLAINTIFF-APPELLEE

vs.

PAMELA A. GHA^..STEII,

DEFENDANT-APPELLANT

JUDGMENT:REVERSED AND REMANDED

Criminal Appeal fromtheRocky River Municipal Court

Case No. 07-CRB-1992

BEFORE: Sweeney, J., Celebrezze, P.J., and Gallagher, J.

RELEASED.AND JOURNALIZED: February 10, 2011

-i-

ATTORNEY FOR APPELLANT

Kenneth D. Myers, Esq.6100 Oak Tree Blvd.Suite 200Independence, Ohio 44131

ATTORNEYS FOR APPELLEE

Michael J. O'Shea, Esq.O'Shea & Associates Co., L.P.A.Beachcliff Market Square19300 Detroit Road, Suite 202Rocky River, Ohio 44116

FILED AND JOURNALIZEDPER APP.R. 22(C)

FEB 10 2011

C AL E. FUERSEALSCLEAK F ^UAT OF A

BY DEP,

JAMES J. SWEENEY, J.:

Defendant-appellant Pamela A. Ghaster ("defendant") appeals the trial

court's determination that found her to be in violation of certain terms of her

community control sanctions. For the reasons that follow, we reverse.

The procedural facts relevant to this case relate to criminal charges filed

against defendant for alleged violations of a temporary protection order ("TPO")

issued in Rocky River Municipal Court Case No. 07 CRB 2173 as well as

defendant's alleged violation of term numbers four and nine of community

control sanctions that were imposed in Rocky River Municipal Court Case No.

07 CRB 1992.

Defendant's neighbor, Mrs. Rauser ("Rauser"), was the subject of the TPO

and also the victim in the community control sanction case.'

The trial court conducted a bench trial on the TPO charges and found

defendant not guilty on the basis that the prosecution did not prove the charges

beyond a reasonable doubt. However, in the same entry that the trial court

found defendant not guilty of the TPO charges, it went on to reason as follows:

"`Additionally, that in considering these facts this Court also had a matter that

'We are aware of another pending appeal concerning a civil protection order that

involves these parties. See, Rauser v. Ghaster, Cuyahoga App. No. 94745. The

resolution of that appeal, however, will have no effect on-thismatter,

-2-

it was considering which is a violation of probation of no contact where there was

a lower standard of proof * * * the Court does not believe and is prepared to find

that the facts presented during this trial and in this case that this Court is

comfortable with stating that the defendant violated that term of probation and

is comfortable that that was shown by a preponderance of the evidence."'Z When

defendant objected that these comments from the. trial judge exhibited a

prejudgment on pending community control violations, two of the alleged

community control violations were transferred for hearing to another judge.3

Specifically, another judge of the court was to determine whether defendant

violated term numbers four and nine of her community control, which provide:

"4. Defendant is not to harass any neighbors or spread any false rumors

about neighbors or engage in stalking behavior.

(t* * '^'.

been in 07 CRB 2173:" (referred to in this opinion as the "TPO")

ZOur review is limited to what is contained in this record, which does not includethe proceedings or transcripts from the TPO case. However, some of the proceedingsfrom the TPO case are quoted throughout the voluminous record provided from theprobation violation matter as exempJified from the quote contained in this footnote.

- 3The original judge, however, found defendant had violated term number two ofher community control as alleged, which finding defendant has not appealedin thismatter.

-3-

For reasons unknown, the parties agreed that the only term at issue

during the community control violation hearing was the alleged violation of term

number nine.

At the community control violation hearing, defendant stipulated to the

existence of the TPO and her awareness of its terms. Also, the prosecution

indicated it had "printed out" the TPO: Although the trial court indicated that

the TPO was part of its record, the parties have not cited to, nor can we find, a

copy of the TPO anywhere in this record.4

After the evidentiary hearing, the trial court found defendant had violated

her community control sanctions and extended them to April of 2011, which

coincides with the term of defendant's community control sanctions imposed in

another matter.

The sole assignment of error provides:

"The trial court erred by not dismissing the probation violation charges on

double jeopardy grounds and by finding appellant guilty of violating her

probation based on the same incidents that were the basis of criminal charges

of which appellant was found not guilty."

"Parole and probation may be revoked even though criminal charges based

"The only exhibits from the community control hearing contained in the record

are photographs.

-4-

on the same facts are dismissed, the defendant is acquitted, or the conviction is

overturned, unless all factual support for the revocation is removed." Barnett v.

Ohio Adult Parole Auth. (1988), 81 Ohio St.3d 385, 387, 692 N.E.2d 135, citing,

Zanders v. Anderson (1996), 74 Ohio St.3d 269, 272, 658 N.E.2d 300; Flenoy v.

Ohio Adult Parole Auth. (1990), 56 Ohio St.3d 131, 132, 564 N.E.2d 1060. In

Barnett, the Ohio Supreme.:Court determined that Barnett's acquittal on.

involuntary manslaughter charges did not remove all factual support that he

violated his parole by engaging in criminal conduct. Id. Specifically, the court

found that the "APA could have appropriately considered evidence that Barnett

had been driving while intoxicated when it reparoled Barnett and imposed

special conditions relating to substance abuse." Id.

In a different proceeding, defendant was charged and acquitted of violating

the TPO. Then, defendant faced this separate proceeding concerning the alleged

violation of her community control sanctions, which the parties agreed involved

term nine that required her to follow the terms of the same TPO. The same set

of facts formed the basis of both proceedings. Contrary to the not guilty finding

in the criminal proceedings, the trial court in this matter found that defendant

did violate the terms of her community control by not following the terms of the

'°: O and extended her community control sanctions for tliat reason. We note

that there is a lower burden of proof involved in determining a community

-5-

control violation in comparison to the burden of proof necessary to obtain a

criminal conviction. Indeed, case law from our jurisdiction, that predates

Barnett, focused its analysis on this distinction. E.g., State v. Hollis (May 15,

1997), Cuyahoga App. No. 70781. However, the Ohio Supreme Court precedent

requires an analysis on the facts upon which both proceedings are based as

opposed to the differing burdens of proof. Id.. The concern being whether an

accused is being forced to "run the gauntlet twice" in defending criminal charges

and alleged community control violations.

This case is unlike Barnett, where Barnett's drinking, of itself, constituted

a, violation of his parole notwithstanding the fact that he was acquitted of

involuntary manslaughter for other reasons not concerning his alcohol

consumption. Under those circumstances, Barnett's acquittal did not remove all

factual support for his parole violation.

In this case, defendant was accused of violating the TPO based on two

incidents where the two women encountered each other in their separate

vehicles on the same day, and defendant allegedly waved at Rauser. The

municipal court found that defendant had not violated the TPO based on this

evidence, but then later relied on the same evidence to determine that ciefendant

had not followed the terms of the TPO and, therefore, violated her community

control.

-6-

The not guilty finding in the firstproceed'ang removed all factual support

for the allegation that defendant violated the TPO and corresponding term nine

of her community control sanctions; notwithstanding the different burdens of

proof. Accord, State v. Sutherlin, 154 Ohio App.3d 765, 768, 2003-Ohio-5265,

798 N.E.2d 1137 (revocation hearing and court's ensuing sentence violated

double jeopardy clause as defendant had already been acquitted of offenses that

constituted community-control violations). We are constrained to make this

finding as the parties agreed that the community control violation hearing was

premisedsolely upon determining whether defendant violated term nine of her

community control sanctions, which required her to follow the terms of the TPO.

The record clearly establishes that the community control violation hearing did

not involve an alleged violation of any other provision of defendant's community

control sanctions.

Judgment reversed and remanded to the lower court for further

proceedings consistent with this opinion.

It is, therefore, considered that said appellant recover of said appellee her

costs herein.

It is ordered that a special mandate be sent to said court to carry this

judgmWnt into execution.

-7-

A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.

J,AIVIES J. SWEE'NEY, JUDGE`^J

FRANK D. CELEBREZZE, JR., P.J., andSEAN C. GALLAGHER, J., CONCUR

[Cite as State v. Ghaster, 2009-Ohio-2134.]

Court of Appeals of OhioEIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINIONNo. 91576

STATE OF OHIO,CITY OF ROCKY RIVER

PLAINTIFF-APPELLEE

vs.

PAMELA A. GHASTER

DEFENDANT-APPELLANT

JUDGMENT:AFFIRMED

Criminal Appeal from theRocky River Municipal Court

Case No. 07-CRB-2173

BEFORE: Celebrezze, J., Gallagher, P.J., and Blackmon, J.

RE,LEASED: May 7, 2009

JOURNALIZED:

ATTORNEY FOR APPELLANT

Kenneth D. Myers75 Public SquareSuite 1300Cleveland, Ohio 44113

ATTORNEY FOR APPELLEE

Michael O'SheaCity of Rocky RiverLaw Department21012 Hilliard BoulevardRocky River, Ohio 44116

N.B. This entry is an announcement of the court's decision. See App.R. 22(B) and26(A); Loc.App.R. 22. This decision will bejournalized and will become the judgmentand order of the court pursuant to App.R. 22(C) unless a motion for reconsiderationwith supporting brief, per App.R. 26(A), is filed within ten (10) days of theannouncement of the court's decision. The time period for review by the SupremeCourt of Ohio shall begin to run upon the journalization of this cour+:'s announcementef decision by the clerk per App.R. 22(C). See, also, S.Ct. Prac.R.lt;.Section 2(A)(1).

FRANK D. CELEBREZZE, JR., J.:

{¶ 1} Appellant Pamela Ghaster brings this appeal challenging her

conviction for menacing by stalking. After a thorough review of the record, and

for the reasons set forth below, we affirm.

{¶2} On October 1, 2007, appellee, the city of Rocky River (the "city"),

charged appellant with one count of menacing by stalking in violation of R.C.

2903.211 (A) (1). On April 16, 2008, ajury trial commenced. The city presented

testimony from several witnesses, including the alleged victim, Laurie Rauser,

her husband, Richard, and Dr. Shila Mathew, the therapist Mrs. Rauser saw for

treatment.

PERTINENT FACTS

{¶ 3} Mrs. Rauser's testimony revealed the following: Appellant and Mrs.

Rauser were neighbors in the Yacht Club Basin area of Rocky River, Ohio. Up

until October 2006, Mrs. Rauser considered her relationship with appellant to be

"neighbor friendly." In October 2006, Mrs. Rauser received a subpoena to appear

in court to testify on behalf of appellant. Appellant's attorney contacted Mrs.

Rauser, and Mrs. Rauser told him that her testimony may damage appellant's

case rather than help her, and Mrs. Rauser indicated that she was not planning

to come to court. After Mrs. Rauser's conversation with appellant's attorney,

appellant left between nine and eleven voicemail messages for Mrs. Rauser,

ranging from begging her to come to court to threatening legal proceedings

against her if she failed to come to court. Mrs. Rauser never spoke with

appellant directly about the subpoena. According to Mrs. Rauser's testimony,

the voicemail messages from appellant made her fearful of appellant.

11[4) Mrs. Rauser also testified that after the October 2006 phone calls,

appellant began harassing her every time she left her home. She testified that

on several occasions, appellant would chase her down the street, swear at her,

make obscene gestures at her, take cell phone pictures of her, and threaten that

Mrs. Rauser would "be sorry." Mrs. Rauser testified that appellant engaged in

this behavior on 10 to 20 occasions between October and December 2006. Mrs.

Rauser also testified that in January 2007, she received a voicemail message

from a person she believed to be appellant, based on the voice, saying "Paybacks

are a bitch." Mrs. Rauser also testified that she was afraid to leave her house

because she feared appellant would hurt her or her young child.

{¶ 5} Mrs. Rauser testified that in August 2007, allegedly in an attempt to

warn her, appellant spoke with her about another neighbor who was being

investigated for child pornography. Appellant left a document at the Rausers'

home about an arrest warrant for the other neighbor. Appellant also left a book

about birds at the Rausers' home, which was intended for their daughter.

116) Mrs. Rauser testified that she had little contact with appellant after

the January 2007 phone call and the August. 2607 incident.

{¶ 7} Mrs. Rauser testified that she witnessed appellant going through her

mail when appellant was allegedly assisting the replacement mailman on his

route. Mrs. Rauser was informed by her hairdresser, Ms. Destro, who also cuts

appellant's hair, that appellant had been asking the hairdresser personal

questions about Mrs. Rauser. On another occasion, Mrs. Rauser witnessed

appellant sitting on a hill behind the Rausers' house, staring at it, walking back

and forth, and taking pictures of the house, for half the day. Mrs. Rauser also

testified that appellant called the police to ticket some of her guests' cars, which

were parked illegally on the street in front of the Rausers' house.

(181 Finally, Mrs. Rauser testified that she sought psychiatric treatment

because of the stress she was feeling due to appellant's behavior toward her and

her family. She stated she was prescribed Xanax to treat her anxiety and

mental distress.

119) Mr. Rauser testified that he witnessed appellant scream obscenities

at him and his family and that he witnessed his wife's reaction to appellant's

conduct when his wife curled up in a ball on the floor, crying and saying she

couldn't take "it"- appellant's harassment- anymore.

{¶ 10} Dr. Mathew testified that she saw Mrs. Rauser as a patient and

treated her for mental distress. She testified that, in her opinion, Mrs. Rauser's

anxiety, panic, and inability to sleep we=,-v caused by appellant's behavior toward

Mrs. Rauser.

{¶ 11} U.S. postal carrier, Michael McCartney, testified that appellant had

helped him on his route by indicating several addresses on the street, but on

cross-examination indicated that appellant never took the mail from his hands.

Ms. Destro testified that appellant had asked questions about Mrs. Rauser, and

she thought the two women were friends. She also testified that when she told

Mrs. Rauser about her conversation with appellant, Mrs. Rauser seemed upset

and asked Ms. Destro not to talk about her to appellant.

{¶ 12} At the close of the city's case, appellant made a Crim.R. 29 motion,

which the trial court denied.

{¶ 13} Appellant called several witnesses in her defense. Jeffrey Capretto,

of the Westshore Enforcement Bureau, Drug Task Force, testified that appellant

was assisting him in an investigation of a suspected drug dealer in her

neighborhood, not a child pornographer. He also testified that appellant

compromised the investigation after she told several of her neighbors that she

was involved in the case. Karen Kirk, a realtor hired by the Rausers to list their

house for sale, testified that she did not know of any potential buyers that

appellant scared off from buying the Rausers' house. Rocky River patrolman,

George Lichman, testified that he issued tickets to cars illegally parked near the

Rausers' house, and that he witnessed Mrs. Rauser become upset because she

thought appellant had called tl.r. police.

{¶ 14} At the close of her case, appellant again moved for a Crim.R. 29

dismissal; the trial court denied her motion.

11151 The jury found appellant guilty, and the trial court sentenced her to

180 days in jail. Appellant's motion to stay sentencing pending appeal was

denied.

Review and Analysis

{¶ 16} Appellant filed this timely appeal and raises three assignments of

error for our review.

Mistrial

{¶ 17} "I. The trial court erred by not declaring a mistrial."

{¶ 18} While Mrs. Rauser was being cross-examined by defense counsel, she

responded to one of the questions about the duration of appellant's alleged

conduct, by saying, "It's not stopped since she was injail." Appellant moved for a

mistrial, contending the comment was unfairly prejudicial. After hearing

arguments by counsel, the trial court denied appellant's motion and instead

struck the testimony and gave a curative instruction to the jury.

{¶ 19} A trial court's denial of a motion for mistrial will not be reversed

upon appeal absent an abuse of discretion. Apaydin v. Cleveland Clinic Found.

(1995), 105 Ohio App.3d 149, 663 N.E.2d 745. An abuse of discretion is found

where a decision is saJ. ;_,nassly violative of fact and logic that it demonstrates a

perverse will, a defiance ofjudgment, undue passion, or extreme bias. Huffman

v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 482 N.E.2d 1248.

1120) Curative instructions have been recognized as an effective means of

remedying errors or irregularities that occur during trial. State v. Zuern (1987),

32 Ohio St.3d 56, 61, 512 N.E.2d 585. Further, juries are presumed to follow any

curative instructions given by a trial court. State v. Henderson (1988), 39 Ohio

St.3d 24, 33, 528 N.E.2d 1237.

{¶ 21) We find that the trial court's denial of a mistrial was proper and that

the trial court's decisions to strike the comment and give a curative instruction

were effective remedies. Mrs. Rauser's comment was not such that we believe

appellant was unfairly prejudiced. The reference to jail was limited to a single

mention early on in the trial; no further mention was made by either counsel or

other witnesses that appellant had spent time injail, nor was reference made to

why she had been in jail; and, the trial court gave a curative instruction that the

jury is presumed to have followed.

{¶ 22} We are not convinced appellant was prejudiced by the mention of

jail, especially in light of the other evidence presented at trial.

{¶ 231 Appellant's first assignment of error is overruled.

Crim.R. 29 Motion

{¶ 24} "lx. The trial court erred by not granting appellant's Rule 29 motion."

{¶ 25} In her second assignment of error, appellant argues that the trial

court erred in denying her Crim.R. 29 motions on the menacing by stalking

charge. Specifically, appellant argues that the city failed to present sufficient

evidence that she knowingly caused the victim to believe she would cause her

physical harm, or that she knowingly caused the victim mental distress. We are

not persuaded.

{¶ 26} Under Crim.R. 29, a trial court "shall not order an entry of acquittal

if the evidence is such that reasonable minds can reach different conclusions as

to whether each material element of a crime has been proved beyond a

reasonable doubt." State v. Bridgeman (1978), 55 Ohio St.2d 261, 381 N.E.2d

814, syllabus. "A motion forjudgment of acquittal under Crim.R. 29(A) should

only be granted where reasonable minds could not fail to find reasonable doubt."

State v. Apanovitch (1987), 33 Ohio St.3d 19, 23, 514 N.E.2d 394.

{¶ 27} Thus, the test an appellate court must apply in reviewing a

challenge based on a denial of a motion for acquittal is the same as a challenge

based on the sufficiency of the evidence to support a conviction. See State v. Bell

(May 26, 1994), Cuyahoga App. No. 65356.

{¶ 28} In State v. Jenks (1991), 61 Ohio St.3d 259, 273, 574 N.E.2d 492, the

Ohio Supreme Court set forth the test an appellate court should apply when

revievuLnr the sufficiency of the evidence to support a conviction: "[T] he relevant

inquiry on appeal is whether any reasonable trier of fact could have found the

defendant guilty beyond a reasonable doubt. In other words, an appellate court's

function when reviewing the sufficiency of the evidence is to examine the

evidence admitted at trial and determine whether such evidence, if believed,

would convince the average mind of the defendant's guilt beyond a reasonable

doubt. State v. Eley (1978), 56 Ohio St.2d 169." See, also, Jackson v. Virginia

(1979), 443 U.S. 307, 99 S.Ct 2781, 61 L.Ed.2d 560.

11291 Appellant was convicted of menacing by stalking. 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 cause mental distress to the other person."

{¶ 30} R.C. 2903.211(D) (1) defines, in relevant part, a "pattern of conduct"

as "two or more actions or incidents closely related in time, whether or not there

has been a prior conviction based on any of those actions or incidents."

1131) R.C. 2903.211(D) (2) defines "mental distress" as "(a) Any mental

illness or condition that involves some temporary substantial incapacity; (b) Any

mental illness or condition that would normally require psychiatric treatment,

psychological treatment, or other mental health services, whether or not any

person requested or received psychiatric treatment, psychological treatment, or

other mental health services."

{1[32} The city produced sufficient evidence that appelrarn; engaged in a

"pattern of conduct" through Mrs. Rauser's testimony. Mrs. Rauser recounted

receiving over nine telephone calls from appellant in October 2006; being

subjected to harassing conduct by appellant when appellant would run after her

car, scream obscenities at her, and make rude gestures at her on no less than ten

occasions between October 2006 and January 2007; receiving a threatening

phone call from appellant saying "Paybacks are a bitch"; being subjected to

appellant posting herself outside the Rausers' home for half a day; being

approached by appellant about a fictitious child pornographer in the area;

having appellant go through the Rausers' mail; and having appellant question

her hairdresser about the Rauser family. We find these incidents satisfy the

"pattern of conduct" requirement.

{¶ 33} The pivotal issue in the case is whether appellant knowingly caused

Mrs. Rauser to believe she would cause her physical harm or caused her mental

distress. State v. Carter, Cuyahoga App. No. 84047, 2004-Ohio-5199 ("the

elements of this offense can be established if the offender either causes another

person to believe he will cause physical harm to them or causes them mental

distress"). We find that there was sufficient evidence that appellant knowingly

caused Mrs. Rauser mental distress.

1134) It should be noted that R.C. 2903.211(D) (2) (b) does not require the

prosecution to prove the victim received treatment for mental distress; however,

in this case, Mrs. Rauser sought and received treatrn^nt for the anxiety, panic,

and stress she testified was caused by appellant's conduct. Her treating

physician, Dr. Mathew, corroborated that testimony.

{¶ 35} Appellant argues that, even if the evidence were believed, it does not

support a finding that she acted knowingly to cause Mrs. Rauser mental

distress. A person acts "knowingly" when "regardless of his purpose, *** he is

aware that his conduct will probably cause a certain result or will probably be of

a certain nature. A person has knowledge of circumstances when he is aware

that such circumstances probably exist." R.C. 2901.22(B).

{¶ 36} Appellant's reliance on Baker v. Inman, Delaware App. No.

04CAE06045, 2004-Ohio-6133, is misplaced. In Baker, the court held there was

insufficient evidence that the victim was caused mental distress; the court did

not address whether the defendant's conduct was done knowingly. Id. (victim

"failed to establish, she suffered 'some temporary substantial incapacity or

mental illness or condition that would normally require psychiatric treatment"').

{¶37} In State v. Moore (May 8, 1998), Montgomery App. No. 16223, the

court affirmed the defendant's conviction for menacing by stalking under facts

similar to the case at bar. The facts in Moore involve six incidents in which the

defendant screamed obscenities at the victim; made obscene gestures at her;

watched her for long periods of time; and in one case yelled to her, "I am going to

get you." Id. There was also testimony from Lhe t,ictim that the defendant made

her nervous when she left her home, that she was afraid of the defendant, and

that she thought he might hurt her. Id. In Moore, the court held that "[t] he

testimony of the alleged victim *** if believed, would persuade the average mind,

beyond reasonable doubt, that [defendant] engaged in a pattern of conduct that

he knew, or should have known, would cause [the victim] to believe that [he] was

going to cause physical harm to her. The cumulative effect of the alleged

incidents * * * was sufficient to put [the victim] in fear that [the defendant] would

physically harm her, and a reasonable person in the [defendant's] position would

know that." Id.

1138) Similarly, Mrs. Rauser testified that she was afraid of appellant,

appellant's conduct made her anxious, and she feared for her own and her

family's safety. We find her testimony, corroborated by the testimony of her

husband and Dr. Mathew, that Mrs. Rauser's stress was caused by appellant's

conduct, was sufficient to show that a reasonable person in appellant's position

would know that her conduct knowingly caused Mrs. Rauser mental distress.

{¶ 39} Appellant's second assignment of error is overruled.

Sufficiency and Manifest Weight of the Evidence

{¶ 40} "{II. (A) The evidence was insufficient to support a conviction. (B)

The verdict was against the manifest weight of the evidence."

{¶ 41} In her third assignment of error, appellant challenges her conviction,

arguing that the city failed to prese.^':: =ufficient evidence and that the jury's

verdict was against the manifest weight of the evidence. Having already

overruled appellant's second assignment of error with respect to the denial of her

Crim.R. 29 motion, which duplicates her argument that the evidence was

insufficient to support a conviction, we now address her argument that the

verdict was against the manifest weight of the evidence.

{¶ 42} The standard employed when reviewing a claim based upon the

weight of the evidence is not the same standard to be used when considering a

claim based upon the sufficiency of the evidence. The United States Supreme

Court recognized these distinctions in Tibbs v. Florida (1982), 457 U.S. 31, 457

U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652, where the court held that unlike a

reversal based upon the insufficiency of the evidence, an appellate court's

disagreement with the jurors' weighing of the evidence does not require special

deference accorded verdicts of acquittal, i.e., invocation of the double jeopardy

clause as a bar to relitigation. Id. at 43.

{¶ 43} Upon application of the standards enunciated in Tibbs, the court in

State v. Martin (1983), 20 Ohio App.3d 172, 485 N.E.2d 717, has set forth the

proper test to be utilized when addressing the issue of manifest weight of the

evidence. The Martin court stated: "There being sufficient evidence to support

the conviction as a matter of law, we next consider the claim that the judgment

was against the manifest weight of the evidence. Here, the test is much broader.

The court, reviewing the entare record, weighs the evidence and all reasonable

inferences, considers the credibility of the witnesses and determines whether in

resolving conflicts in the evidence, thejury clearly lost its way and created such

a manifest miscarriage ofjustice that the conviction must be reversed and a new

trial ordered."

1144) Moreover, it is important to note that the weight of the evidence and

the credibility of the witnesses are issues primarily for the trier of fact. State v.

DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212. Hence, we must accord due

deference to those determinations made by the trier of fact.

{¶ 45) The city presented evidence through the testimony of Mrs. Rauser

and her husband that appellant made numerous harassing telephone calls to

them; that she chased after them while screaming obscenities and gesturing

obscenely at them; that she positioned herself on a hillside in order to stare at

the Rausers' house for half of a day; that she called to Mrs. Rauser several times

words to the effect of "you're going to be sorry" and "you're going to jail"; that

Mrs. Rauser identified appellant's voice in a voicemail message on her home

phone stating "Paybacks are a bitch"; and that appellant persisted in talking

about the Rausers to third parties when it should have been clear to appellant

the two women were not on friendly terms.

{¶ 46} Appellant presented evidence in the form of other witnesses'

testimony that their interaction with appellant, as it pertained to Mrs. Rauser,

was seemingly harm,=1^1s:R:, We do not dispute that their testimony contradicted

the testimony of Mr. and Mrs. Rauser. It was up to the jury, however, to weigh

the credibility of each witness. The jury was free to believe none, some, or all of

any witness's testimony. See State v. Gassett, Hamilton App. No. C-040462,

2005-Ohio-2340. The jury had an opportunity to weigh the testimony and

assess the credibility of all the witnesses.

{¶ 47} We conclude that appellant's conviction was not a manifest

miscarriage of justice and, therefore, it was not against the manifest weight of

the evidence.

{¶ 48} Appellant's third assignment of error is overruled.

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 issue out of this court directing the

Rocky River Municipal Court to carry this judgment into execution. The

defendant's conviction having been affirmed, any bail pending appeal is

terminated. Case remanded to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.

FRANK D. CELEBREZZE, JR., JUDGE

SEAN C. GAL.i.^,GHER, P.J., andPATRICIA ANN BLACKMON, J., CONCUR

[Cite as State v. Ghaster, 2009-Ohin-2117.1

Court of Appeals of OhioEIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINIONNo. 90838

STATE OF OHIO9CITY OF ROCKY RIVER

PLAINTIFF-APPELLEE

vs.

PAMELA A. GHASTER

DEFENDANT-APPELLANT

JUDGMENT:AFFIRMED

Criminal Appeal from theRocky River Municipal Court

Case No. 07-CRB-1992

BEFORE: Celebrezze, J., Gallagher, P.J., and Blackmon, J.

:`'._LEASED: May 7, 2009^._

JOURNALIZED:

ATTORNEYS FOR APPELLANT

Kenneth D. Myers75 Public SquareSuite 1300Cleveland, Ohio 44113

David N. PattersonPatterson & Frost33579 Euclid AvenueWilloughby, Ohio 44094

ATTORNEY FOR APPELLEE

Michael O'SheaCity of Rocky RiverLaw Department21012 Hilliard BoulevardRocky River, Ohio 44116

N.B. This entry is an announcement of the court's decision. See App.R. 22(B) and26(A); Loc.App.R. 22. This decision will bejournalized and will become thejudgmentand order of the court pursuant to App.R. 22(C) unless a motion for reconsiderationwith supporting brief, per App.R. 26(A), is filed within ten (10) days of theannouncement of the court's decision. The time period for review by the SupremeCourt of Ohio shall begin to run upon the journalization of this court's announcementof decision by the clerk per App.R. 22(C). See, also, S.Ct. Prac.R. II, Section 2(A)(1).

FRANK D. CELEBREZZE, JR., J.:

1111 Appellant Pamela Ghaster brings this appeal challenging her

convictions for intimidation and obstructing official business. After a thorough

review of the record, and for the reasons set forth below, we affirm.

{1[2} On September 6, 2007, appellee, city of Rocky River (the "city"),

charged appellant with four counts of criminal conduct: two counts of disorderly

conduct in violation of R.C. 2917.11 (A) and (E), one count of intimidation in

violation of R.C. 2921.04(A), and one count of obstructing official business in

violation of R.C. 2921.31(A) .

{¶ 3} On December 12, 2007, ajury trial commenced. The city dismissed

both disorderly conduct charges, and the trial proceeded on the intimidation and

obstructing official business charges. The city presented testimony from several

witnesses, including Officers Matthew Blazer and Tracey Hill, and neighborhood

residents, Jeffrey Lakatos and John Seelie.

{¶ 4} Jeffrey Lakatos testified that he is appellant's neighbor in an area of

Rocky River known as the Yacht Club Basin. Mr. Lakatos testified that on

September 2, 2007, he was grilling in his backyard when he overheard appellant

screaming obscenities at another neighbor within earshot of his house. He

testified that he took his infant daughter inside so she :, a.;alld not hear appellant,

and then he called the Rocky River police to lodge a complaint. Mr. Lakatos

testified that Officers Blazer and Hill responded to his call and met him in front

of his house to ask him questions. He testified that he chose to return to his

house to fill out a statement because he saw appellant approaching him and he

was afraid of her. Mr. Lakatos further testified that when the officers later

returned to his house to retrieve his statement, they looked visibly shaken by

their recent interaction with appellant. He testified that he decided to complete

the statement later and bring it to the station himself, which he did.

{¶ 5} Officer Blazer testified that he and Officer Hill responded to the call

from Mr. Lakatos, at which time they drove to the Yacht Club Basin where the

alleged disturbance had taken place. Officer Blazer testified that while Mr.

Lakatos was explaining to him what he had heard appellant yelling, appellant

approached the area where the three men were standing. He testified that

appellant began telling the officers about another incident that had occurred

earlier that day. Officer Blazer testified that appellant was instructed to return

to her house, which she refused to do. He testified that it was department policy

to interview witnesses separately. He testified that instead of returning to her

home as instructed, appellant began yelling at the two officers that they were

not doing their job right and that she wanted their badge numbers in order to

file a lawsuit against them.

{¶ 6} Officer Blazer testified that appeatant eventually returned to her

house and that he and Officer Hill continued their investigation. Mr. Lakatos

told them he would bring his completed police statement to the station later, so

the officers began to leave the area. Officer Blazer testified that appellant

returned to the scene accompanied by her husband, Earl Ghaster, and as he

attempted to back out of the space where the police cruiser was parked,

appellant and her husband blocked the path of the police vehicle. Officer Blazer

testified that he and Officer Hill demanded several times that the couple move,

which they refused to do. Within five to ten seconds, appellant moved, and

Officer Blazer backed the vehicle out of the space. Officer Blazer testified that

appellant then blocked the front of the vehicle, thereby preventing him from

pulling forward and down the street. Again the officers demanded that she move

out of the way, which she ultimately did. Officer Blazer testified that appellant

was screaming and yelling at the two officers the entire time she was blocking

their vehicle.

{¶ 7} Officer Blazer testified that he returned to the Yacht Club Basin

later that day to take a statement from another witness and in response to a call

from appellant and her husband. He testified that he gave statement forms to

appellant and her husband so that they could complete and bring them to the

station, but those forms were never returned.

1181 Officer Hill testified that he accompanied Officer Blazer on the

complaint called in by Mr. Lakatos r r:: ding appellant on September 2, 2007.

He corroborated Officer Blazer's testimony with respect to appellant's behavior

while they were speaking with Mr. Lakatos. He testified that appellant

screamed at them, threatened to file a lawsuit against them for failing to do

their job, and requested Officer Hill's badge number, which he gave to her.

Officer Hill testified that he repeatedly asked appellant to return to her house,

saying she was not needed at that time. He testified that although appellant

eventually left the scene, she reappeared shortly thereafter with her husband.

119) Officer Hill also corroborated Officer Blazer's testimony that

appellant blocked the path of their cruiser, both as Officer Blazer attempted to

back up and then pull forward from where they were parked. He testified that

appellant continued to scream obscenities at them while the officers were in

their car. He testified that he did not accompany Officer Blazer when he

returned to the Ghaster's house later that evening.

{¶ 10} Both officers testified that the police cruiser was equipped with a

camera mounted on the dashboard, but it was not activated that evening.

Officer Blazer testified that he had not been instructed on the use of the camera,

and Officer Hill testified that he had been trained on a camera that operated

differently than the one in the cruiser.

{¶ 11} John Seelie, another resident of the Yacht Club Basin, testified that

he observed appellant screaming at the police officers, blocking the path of their

car, and not moving from ber;Lnd or in front of their vehicle until Mr. Ghaster

convinced her to move. Mr. Seelie testified that the confrontation between the

officers and appellant lasted approximately five to ten minutes. He testified that

the officers remained calm while they repeatedly asked appellant to get out of

their way.

{¶ 12} Both officers and Mr. Seelie testified that Officer Blazer would have

run appellant over with the police cruiser given where she was standing, first

behind and then in front of the car, had he not waited for her to move.

{¶ 13} At the close of the city's case, appellant moved for dismissal under

Crim.R. 29. The court denied her motion.

{¶ 14} Appellant presented testimony from her husband, Earl Ghaster. Mr.

Ghaster testified that he and appellant arrived at their home on September 2,

2007 in the early evening and went inside. Mr. Ghaster testified that appellant

left the house shortly after they had arrived home, but that he stayed inside. He

testified that he had no personal knowledge of anything that occurred between

appellant and the officers the first time appellant left the house. Mr. Ghaster

testified that appellant returned to the house and told him the police officers

wanted to talk to him. He testifi-ed that he accompanied appellant back to where

the police officers were, but the officers appeared to be leaving the area. He

testified that the police officers indicated that they did not want to speak with

him; then the officers drove away in their vehicle. Mr. Ghaster testified that

neither he nor appellv: ^,..= blocked their vehicle and that appellant never screamed

at the officers.

{¶ 15) At the close of trial, appellant again moved for dismissal under

Crim.R. 29, which the court denied.

{¶ 161 The jury found appellant guilty on both charges. The trial court

sentenced appellant to 180 days in jail on each charge, to run concurrent, with

90 days to be served immediately and 90 days stayed, two years probation, and a

total of $1,000 in fines ($500 on each offense), plus court costs. On December 26,

2007, appellant filed this timely appeal.

Review and Analysis

{¶ 17} Appellant raises three assignments of error for our review. For ease

of discussion, we address the assignments of error out of order.

Validity of Complaint

{¶ 18) "II. The trial court erred by allowing the prosecutor to present

evidence and to argue that acts outside of the complaint could be used to convict

defendant and by allowing repeated prejudicial remarks to be made about

defendant."

{¶ 19) In her second assignment of error, appellant argues that the trial

court erred by allowing testimony regarding acts not listed in the complaint to be

introduced at trial; therefore, the criminal complaint was insufficient, and she

suffered prejudice. The city argues that appellant waived her right to challenge

the complair' v failing to file a timely objection and, furthermore, that ,^Aia^2,

criminal complaint was sufficient under Crim.R. 3.

{¶ 20} Crim.R. 3 states: "The 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} "A valid complaint is a necessary condition precedent for the trial

court to obtain jurisdiction in a criminal matter. Village of New Albany v.

Dalton ( 1995), 104 Ohio App.3d 307, 311, 661 N.E.2d 1132; City of Newburgh

Heights v. Hood, Cuyahoga App. No. 84001, 2004-Ohio-4236, 15, citing State v.

Kozlowski (Apr. 18, 1996), Cuyahoga App. No. 69138. An objection as to whether

a complaint properly charges an offense may be raised at any time during the

pendency of the action. Crim.R. 12(C)(2); State v. Sampson, Second Dist. No.

22214, 2008-Ohio-775, T 17. An action is considered to be pending until a final

judgment has been rendered. Maynard v. Eaton Corp., 119 Ohio St.3d 443, 446,

2008-Ohio-4542, 895 N.E.2d 145. Furthermore, appellate review of the validity

of a complaint is de novo. Hood, 2004-Ohio-4236, at ^5." State v. Hoerig, Seneca

App. No. 13-08-39, 2009-Ohio-541.

(1221 "Generally, an indictment must allege all elements of the crime

charged. State v. Jester (1987), 32 Ohio St.3d 147, 149, 512 N.E.2d 962,

certiorari denied (1988), 484 U.S. 1047, 108 S.Ct. 785. If a material element

iden°,:in-'ng the offense is omitted from the indictment, it is insufficiet:; ij,° charge

an offense. Id., citing Harris v. State (1932), 125 Ohio St. 257, 181 N.E. 104;

State v. Headley (1983), 6 Ohio St.3d 475, 453 N.E.2d 716; State v. Wozniak

(1961), 172 Ohio St.517, 178 N.E.2d 800.

{¶ 23} "`The formal criminal charge whether by an indictment, an

information, or a complaint under Criminal Rule 3, must contain the constituent

elements of a criminal offense. While all the specific facts relied upon to sustain

the charge need not be recited, the material elements of the crime must be

stated.' State v. Burgun (1976), 49 Ohio App.2d 112, 359 N.E.2d 1018, at

paragraph one of the syllabus. 'The numerical designation of the applicable

criminal statute in a complaint does not cure the defect in failing to charge on all

the essential elements of the crime.' Id. at paragraph two of the syllabus. 'A

complaint is legally sufficient when it states all of the essential elements of the

offense, such that the complaint provides the defendant with reasonable notice of

the nature of the offense.' State v. Sweeney (1991), 72 Ohio App.3d 404, 594

N.E.2d 1000. State exrel. Novak v. Carroll (Sept. 2, 1999), Cuyahoga App. No.

75098; Brecksville v. Marchetti (Nov. 22, 1995), Cuyahoga App. Nos. 67719 and

67722, appeal dismissed (1996), 76 Ohio St.3d 1404, 666 N.E.2d 565." Hood,

supra.

{¶24} On the intimidation charge, the criminal complaint against

appellant sets forth the date of the offense as September 2, 2007 and reads:

"Pamela Ghaster *** unlawfully did violate: Statute 2921.04(1,`. Intimidation of

attorney, victim, or witness in criminal case, which states [n] o person shall

knowingly attempt to intimidate or hinder the victim of a crime in the filing or

prosecution of criminal charges or a witness involved in a criminal action or

proceeding in the discharge of the duties of the witness, namely did attempt to

intimidate or hinder witness Patrolman Matt Blazer by placing herself in path of

Rocky River Police Cruiser 6517 ***."

{¶ 25} On the obstructing official business charge, the criminal complaint

against appellant sets forth the date of the offense as September 2, 2007 and

reads: "Pamela Ghaster *** unlawfully did violate: Statute 2921.31(A),

Obstructing Official Business, which states, [n] o person, without privilege to do

so and with purpose to prevent, obstruct, or delay the performance by a public

official of any authorized act within the public official's official capacity, shall do

any act that hampers or impedes a public official in the performance of the

public official's lawful duties, namely did place herself in the path of Rocky River

Police cruiser 6517 which hampered or impeded a Police Officer's performance of

lawful duties *** ."

{¶ 26} Both criminal complaints were authorized and filed on September 6,

2007.

{¶ 27} As an initial matter, We are not persuaded by the city's waiver

argument, since an objection to a structurally deficient indictment or criminal

complaint may be raised at any time during the pex3dt;.a:,-y of an action.i

lIt is not clear what version of Crim.R. 3 the city cites in its brief (p. 24); Crim.R.

{¶ 28} We are persuaded, however, by the city's argument that the criminal

complaints in this case are sufficient. The complaints against appellant set forth

the date of the offenses, references to R.C. 2921.04(A) and R.C. 2921.31(A)

respectively, the essential elements of both statutes, and a brief description of at

least some of the conduct appellant engaged in that constituted the offenses.

Furthermore, appellant did not request a bill of particulars or a more definite

statement.

1129) Appellant argues that the trial court erred by letting in testimony

about additional acts, not listed in the complaint and that she was not on notice

of evidence the city planned to use against her. We find that the acts outside the

complaint, including appellant screaming at the police officers and threatening

to file a complaint against them, were related to appellant's conduct in

committing the underlying offense, and were properly admitted at trial.

{¶ 30} On October 15, 2008, appellant filed a supplemental brief, extending

the argument on her second assignment of error. She challenges the trial court's

decision to limit her cross-examination of Officer Blazer on whether he or the

prosecutor filed the criminal charges against her. This argument is without

merit.

3 does not include language about the timeline,si;;t; bbjections to a criminal complaint.Furthermore, Crim.R. 12(C)(2) clearly states that challenges to the charge in anindictment may be raised at any time during the pendency of the proceeding.

{¶ 31} Minor criminal prosecutions may be initiated by complaint as

provided for by Crim.R. 3. The prosecuting attorney or other chief legal officer is

responsible for the prosecution of the case. See State v. Luther, Ashtabula App.

No. 2003-A-0130, 2005-Ohio-950.

{¶ 32} The sworn complaints were made and signed by Officer Blazer. This

process is completely lawful on misdemeanor charges. That Officer Blazer

signed the criminal complaints has no relevance to the charges against

appellant, and it was not error for the trial court to cut short appellant's cross-

examination on this point. A police officer is not qualified to testify on legal

questions, and Officer Blazer had already described on the record the steps he

took in swearing out the complaints.

{¶ 33} It is our belief that appellant's line of questioning was designed to

confuse the jury on an issue that is irrelevant to a determination of guilt.

Appellant's second assignment of error is overruled.

Crim.R. 29 Motion

{¶ 34} "I. The trial court erred in not granting defendant's Rule 29 motion

on the intimidation charge."

{¶ 35} In her first assignment of error, appellant argues that the trial court

erred in denying her Crim.R. 29 motion as to the intimidation charge.

Specifically, appellant argues thaz i Im, city failed to present sufficient evidence

that she threatened Officer Blazer. We are not persuaded.

{¶ 36} Under Crim.R. 29, a trial court "shall not order an entry of acquittal

if the evidence is such that reasonable minds can reach different conclusions as

to whether each material element of a crime has been proved beyond a

reasonable doubt." State v. Bridgeman (1978), 55 Ohio St.2d 261, 381 N.E.2d

184, syllabus. "A motion for judgment of acquittal under Crim.R. 29(A) should

only be granted where reasonable minds could not fail to find reasonable doubt."

State v. Apanovitch (1987), 33 Ohio St.3d 19, 23, 514 N.E.2d 394.

{¶ 37) Thus, the test an appellate court must apply in reviewing a

challenge based on a denial of a motion for acquittal is the same as a challenge

based on the sufficiency of the evidence to support a conviction. See State v. Bell

(May 26, 1994), Cuyahoga App. No. 65356. In State v. Jenks (1991), 61 Ohio

St.3d 259, 273, 574 N.E.2d 492, the Ohio Supreme Court set forth the test an

appellate court should apply when reviewing the sufficiency of the evidence of

support a conviction:

{¶ 38} "[T] he relevant inquiry on appeal is whether any reasonable trier of

fact could have found the defendant guilty beyond a reasonable doubt. In other

words, an appellate court's function when reviewing the sufficiency of the

evidence is to examine the evidence admitted at trial and determine whether

such evidence, if believed, would convince the average mind of the defendant's

guilt beyond a reasonableabt. State v. Eley (1978), 56 Ohio St.2d 169." See,

also, Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct 2781, 61 L.Ed.2d 560.

{¶ 391 Appellant was convicted of the misdemeanor charge of intimidation

in violation of R.C. 2921.04(A), which states: "No person shall knowingly attempt

to intimidate or hinder the victim of a crime in the filing or prosecution of

criminal charges or a witness involved in a criminal action or proceeding in the

discharge of the duties of the witness." She argues that a conviction under this

statute requires evidence that the defendant threatened a witness. We disagree.

{¶ 401 Appellant cites Ohio Supreme Court case law for the proposition

that a charge of intimidation requires evidence of a threat. Appellant's

interpretation of the applicable case law is misguided, as is her reliance on case

law for felony convictions for intimidation.2 In State v. Cress, 112 Ohio St.3d 72,

2006-Ohio-6501, 858 N.E.2d 341, the Ohio Supreme Court held that threatening

a witness, by its very nature, constituted intimidation; the court did not hold

that intimidation requires a showing that a witness was threatened.3

1141) "R.C. 2921.04(A) states a defendant is in violation of said provision if

he or she knowingly attempts to intimidate or hinder a crime victim. There is no

2For a felony conviction under R.C. 2921.04(B), the statute states: "No person,knowingly and byforce or by unlawful threat of harm to any person or property, shallattempt to influence, intimidate, or hinder the victim of a crime in the filing orprosecution of criminal charges or an attorney or witness involved in a criminal actionor proceeding in the discharge of the duties of the attorney or witness." (Emphasisadded.)

3The trial court in the case at bar acknowledges that State v. Cress stands for theproposition that a c^-°ve of intimidation"prohibits the threatening of witnesses," butthat the "opinion does not go on to further say that the threatening of witriesses in the(A) section is mandatory ***."

requirement of a threat. *** While the majority of fact patterns concerning R.C.

2921.04(A) *** do contain overt threats, we are not aware of an appellate court

that, to date, has required the making of a threat in order to sustain a conviction

under R.C. 2921.04(A)." State v. Simpson, Franklin App. No. 07AP-194, 2007-

Ohio-7018. See, also, State v. Munz, Cuyahoga App. No. 79576, 2002-Ohio-675

(conviction under R.C. 2921.04(A) upheld where the defendant called the victim

of his domestic violence charge and said he would commit suicide if she

continued with the charges).

{¶ 42} In this case, the city produced evidence that appellant attempted to

intimidate or hinder the officers, who were attempting to investigate the call

made by Mr. Lakatos. Appellant used abusive language towards the officers,

frightened them, and prevented them from moving their cruiser, thereby

attempting to hinder their ongoing investigation. There was also evidence that

appellant threatened to file a lawsuit against the officers. This evidence is

sufficient to sustain a conviction for a misdemeanor intimidation. Appellant's

first assignment of error is overruled.

Suff'iciency and Manifest Weight of the Evidence

{¶ 43} "I{I. A) The evidence was insufficient to support the conviction; B)

the verdict was against the manifest weight of the evidence."

{¶ 44} h..i her third assignment of error, appellant challenges both of her

convictions, arguing that the city failed to present sufficient evidence on both

charges and that the jury's verdicts were against the manifest weight of the

evidence. We disagree.

{¶ 45} As stated in our analysis of appellant's first assignment of error, an

appellate court's function in 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

defendant's guilt beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio

St.3d 259, 574 N.E.2d 492. Whether the evidence is legally sufficient to sustain

a verdict is a question of law. State v. Robinson (1955), 162 Ohio St. 486, 124

N.E.2d 148. A challenge to the sufficiency of the evidence supporting a

conviction requires a court to determine whether the state has met its burden of

production at trial. State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678

N.E.2d 541.

11[461 The standard employed when reviewing a claim based upon the

weight of the evidence is not the same standard to be used when considering a

claim based upon the sufficiency of the evidence. The United States Supreme

Court recognized these distinctions in Tibbs v. Florida (1982), 457 U.S. 31, 102

S.Ct. 2211, 72 L.Ed.2d 652, where the court held that unlike a reversal based

upon the insufficiency of the evidence, an appellate court's disagreement with

ir .,;t^rors' weighing of the evidence does not require special defere {a:e accorded

verdicts of acquittal, i.e., invocation of the double jeopardy clause as a bar to

relitigation.

{¶ 47} Upon application of the standards enunciated in Tibbs, the court in

State v. Martin (1983), 20 Ohio App.3d 172, 485 N.E.2d 717, has set forth the

proper test to be utilized when addressing the issue of manifest weight of the

evidence. The Martin court stated: "There being sufficient evidence to support

the conviction as a matter of law, we next consider the claim that the judgment

was against the manifest weight of the evidence. Here, the test is much broader.

The court, reviewing the entire record, weighs the evidence and all reasonable

inferences, considers the credibility of the witnesses and determines whether in

resolving conflicts in the evidence, the jury clearly lost its way and created such

a manifest miscarriage ofjustice that the conviction must be reversed and a new

trial ordered."

{q 48} It is important to note that the weight of the evidence and the

credibility of the witnesses are issues primarily for the trier of fact. State v.

DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212. Hence we must accord due

deference to those determinations made by the trier of fact.

{¶ 49} With respect to the obstruction charge,4 appellant argues she was

not hindering the officers' investigation by. standing in front of, then behind,

their police car, but was in fact assisting them with their investigation.

{¶ 50} R.C. 2921.31(A) states: "No person, without privilege to do so and

with purpose to prevent, obstruct, or delay the performance by a public official of

any authorized act within the public official's official capacity, shall do any act

that hampers or impedes a public official in the performance of the public

official's lawful duties."

{¶ 51} The evidence presented by the city was that, at the time of the

incident, the officers were responding to a complaint called in by Mr. Latakos;

that the officers asked Mr. Latakos to fill out a written statement; that appellant

began yelling at the officers and threatening to sue them; that when the officers

returned to their cruiser and tried to drive away, appellant blocked the path of

the police vehicle by standing first in front of, then behind it.

{¶ 52} Viewing this evidence in a light most favorable to the prosecution, it

is sufficient to show that appellant acted with purpose to prevent or delay the

police officers from their lawful duties, i.e., completing their investigation.

Appellant's suggestion that the officers were no longer acting in their official

capacity because they were leaving the scene is absurd. The investigation was

41n her first assignment of error, appellant argues that the trial court erred indenying her Crim.R. 29 motion as to the intimidation charge. She repeats thatargument here, and we have already overruled it.

ongoing, especially in light of the facts that Mr. Latakos had not completed his

written statement, Officer Blazer was dispatched back to the Ghaster residence,

and Officer Blazer returned to the scene to speak with another witness.

{¶ 53} Appellant next argues that the jury's verdicts were against the

manifest weight of the evidence. We disagree.

1154) As it relates to both charges, the city presented evidence that

Officers Hill and Blazer were in the Yacht Basin Club area responding to a

resident's called-in complaint about a neighbor screaming obscenities at another

neighbor. The city presented evidence from several witnesses that as the officers

began their investigation of the complaint, appellant screamed and yelled

obscenities at the officers; that appellant refused to back away from them and

their cruiser when she was asked to; and that appellant blocked the officers'

cruiser as they attempted first to back out, then to pull away from, the spot

where the cruiser was parked.

{¶ 55} Appellant presented evidence in the form of her husband's testimony

that he did not witness appellant's and the officers' initial interaction; that he

came outside to speak with the officers at appellant's request; that he and

appellant were near the officers' car as they were pulling out of the parking

space; and that appellant was not screaming obscenities at the officers nor was

she blocking their way.

{¶ 56} Mr. Ghaster's testimony clearly contradicted the testimony of all of

the city's witnesses. It was up to the jury, and only the jury, to weigh the

credibility of each witness. The jury was free to believe none, some, or all of any

witness's testimony. See, State v. Gassett, Hamilton App. No. C-040462, 2005-

Ohio-2340.

{¶ 57} Appellant also argues that Officer Blazer cannot be both a victim of

and a witness to a crime. We do not agree. Appellant prevented Officer Blazer

from completing his investigation, as well as prevented him from leaving the

scene to continue the investigation.

{¶ 58} The jury had an opportunity to weigh the testimony and assess the

credibility of all the witnesses. We conclude that neither of appellant's

convictions was a manifest miscarriage of justice; therefore, they were not

against the manifest weight of the evidence. Appellant's third assignment of

erroris overruled.

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 issue out of this court directing the

Rocky River Municipal Court to carry this judgment into execution. The

defendant's conviction having, affirmed, any bail pending appeal is

terminated. Case remanded to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.

FRANK D. CELEBREZZE, JR., JUDGE

SEAN C. GALLAGHER, P.J., andPATRICIA ANN BLACKMON, J., CONCUR

[Cite as Rauser v. Ghaster, 2009-Ohio-5698.]

Court of Appeals of OhioEIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINIONNo.92699

LAURIE RAUSER, ET AL.

PLAINTIFFS-APPELLANTS

vs.

PAMELA GHASTER

DEFENDANT-APPELLEE

JUDGMENT:REVERSED AND REMANDED

Civil Appeal from theCuyahoga County Court of Common Pleas

Case No. CV-655883

BEFORE. McMonagle, P.J., Blackmon, J., and Stewart, J.

RELEASED: October 29, 2009 '

JOURNALIZED: October 29, 2009

ATTORNEY FOR APPELLANTS

Michael P. Maloney24441 Detroit RoadSuite 300Westlake, OH 44145

ATTORNEY FOR APPELLEE

Kenneth D. Myers6100 Oak Tree BoulevardSuite 200Independence, OH 44131

ON RECONSIDERATION'

CHRISTINE T. McMONAGLE, P.J.:

{¶ 1} This cause came to be heard upon the accelerated calendar

pursuant to App.R. 11.1 and Loc.R. 11.1, the trial court records, and briefs of

counsel.

{12} Plaintiffs-appellants, Laurie and Richard Rauser, filed a petition

under R.C. 2903.214 for a civil stalking protection order against

defendant-appellee, Pamela Ghaster, on April 4, 2008. A hearing was held

on September 26, 2008, and at the conclusion of the Rausers' case, the court

granted Ghaster's motion for a directed verdict; a judgment was issued on

September 29. The Rausers requested findings of fact and conclusions of law

on October 2; the trial court denied their request on January 13, 2009. The

Rausers appeal those judgments.2 We reverse and remand.

'The original announcement of decision, Rauser v. Ghaster, 2009-Ohio-4027,released August 13, 2009, is hereby vacated. This opinion, issued uponreconsideration, is the court's journalized decision in this appeal. See S.Ct.Prac.R. II,Section 2(A)(1).

2Although the Rausers state in their notice of appeal that the;.^ a:re appealing thew;,,,iuary 13 judgment, they have not assigned any error relative to The judgmentprovides in part that the September 29 "entry includes findings of fact upon which theparties may rely for purposes of appeal." We agree.

II

{¶ 3} The Rausers moved into a home on Riverdale Drive in Rocky

River, Ohio in July 2005. Ghaster also resided on that street, near the

Rausers' home. Initially, the Rausers and Ghaster interacted in a friendly,

neighborly way. Their interactions with one another, however, changed in

October 2006, when Laurie received a subpoena to testify on Ghaster's behalf

in a proceeding involving Ghaster and some other neighbors. Laurie

indicated to Ghaster and her attorney that she would not testify and that

anything she had to say would not be beneficial to Ghaster. Thereafter,

according to the Rausers, Ghaster began her menacing behavior.

{¶ 4} Laurie testified, for example, that Ghaster engaged in the

following behavior toward her, Richard, and/or their young daughter: (1)

yelling threats and gesturing obscenely as they walked in the neighborhood;

(2) standing in the street directly in front of their home (or other areas by

their home) for hours at a time yelling threats and taking photos of them; (3)

repeatedly calling on the phone saying that Laurie was "going to be sorry" if

she did not testify; and (4) leaving a book in the bushes for their daughter.

{¶ 5} Laurie described that Chaster's behavior made her variously feel

"mortified," "in fear," "under duress," and "terrified." Laurie further testified

that she obtained professional help and was takin^ ^^^oscription medication

because of Ghaster's behavior.

{¶ 6} Richard also testified about Ghaster's behavior toward him and

his family. He described Laurie as being "very distressed" over the situation,

and stated that he was "very concerned" for the safety of his wife and

daughter.

III

1171 The Rausers present four assignments of error for our review, the

sum and substance of which are that the trial court erred by denying their

petition.3 We agree.

{¶ 8} Initially, we clarify our standard of review (the Rauser's argue

that "[a] preponderance-of-the evidence standard controls[;]" while Ghaster

argues that "[t]he decision whether to grant a civil protection order is well

within the sound discretion of the trial court[.]").

{¶9} In Abuhamda-Sliman v. Sliman, 161 Ohio App.3d 541,

2005-Ohio-2836, 831 N.E.2d 453, this court stated the following in regard to

3The Rausers argue in their first assignment of error that the doctrines of resjudicata and issue preclusion apply because Ghaster was previously convicted ofmenacing by stalking, for which they were the victims, in a criminal case in the RockyRiver Municipal Court. Those doctrines, however, are relevant to actions by the sameparties or their privies. See Fort Frye Teachers Assn., OEA/NEA v. State Emp.Relations Bd., 81 Ohio St.3d 392, 1998-Ohio-435, 692 N.E.2d 140. This case was acivil case, and the Rocky River case was a crimina! case; therefore, the parties were notthe same and res judicata and issue preclusion dre _not relevant here.

the standard of review of the trial court's judgment granting a domestic

violence civil protection order under R.C. 3113.31:

{¶ 10} "We think our standard of review must depend on the nature of

the challenge to the protection order. Because R.C. 3113.31 expressly

authorizes the courts to craft protection orders that are tailored to the

particular circumstances, it follows that the trial court has discretion in

establishing the scope of a protection order and that judgment ought not be

disturbed absent an abuse of discretion. When the issue is whether a

protection order should have issued at all, however, the resolution of that

question depends on whether the petitioner has shown by a preponderance of

the evidence that the petitioner or the petitioner's family or household

member was entitled to relief." Id. at T9, citing Felton v. Felton, 79 Ohio

St.3d 34; 1997-Ohio-302, 679 N.E.2d 672, paragraph two of the syllabus.

{¶ 11} Recently, in reviewing a trial court's disposition of a petition for a

civil stalking protection order under R.C. 2903.214, the Seventh Appellate

District, citing Abuhamda-Sliman, stated the following:

{¶ 12} "Our standard of review for whether the protection order should

have been granted and thus whether the elements of menacing by stalking

were established by the preponderance of the evidence entails a manifest

weight of the evidence review. If there is a question as to the restrictions

imposed by the court, however, we review the court's decision for an abuse of

discretion." (Citations omitted.) Caban v. Ransome, Mahoning App. No. 08

MA 36, 2009-Ohio-1034, 17.

11131 Here, the issue is whether the Rausers' petition should have

survived a directed verdict and, thus, on the authority of Abuhamda-Sliman

and Caban, we decide whether the Rausers presented competent, credible

evidence on each element of menacing by stalking such that a directed verdict

was error.

{¶ 14} "Unlike criminal appeals, where we can reweigh the evidence,

civil appeals require more deference to the trial court and require affirmance

of those judgments supported by some competent and credible evidence.

State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, T26, 865 N.E.2d 1264.

Thus, civil judgments supported by some competent and credible evidence

cannot be reversed on appeal as being contrary to the manifest weight of the

evidence. Id. at T24, citing C.E. Morris Co. v. Foley Constr. Co. (1978), 54

Ohio St.2d 279, 280, 376 N.E.2d 578. Thus, we must evaluate whether there

was some competent, credible evidence on each element of menacing by

stalking." Caban at T8. We find that there was.

{¶ 15} The menacing by stalking statute provides:

{¶ 16} "No person by engaging in a pattern of conduct shall knowingly

cause another person to be?jc-nr-: that the offender will cause physical harm to

the other person or cause mental distress to the other person." R.C.

2903.211(A) (1).

11[17) The trial court's September 29 judgment provides in relevant

part:

{¶ 18} "To prevail, plaintiff must establish by a preponderance of the

evidence that the respondent's conduct amounted to persistent and

threatening harassment that left the petitioner in constant fear of physical

danger. Olenik v. Huff, [Ashland App. No. 02-COA-058, 2003-Ohio-4621].

O.R.C. 2903.[2]14 is not intended to alleviate uncomfortable situations.

Nwosu v. Underwood, [Marion App. No. 9-06-53, 2007-Ohio-1907]. The

petitioner testified that the respondent never threatened physical harm. The

petitioner also testified about a couple of instances wherein the petitioner and

respondent were on a roadway at the same time and the respondent waved at

her. Furthermore, these instances occurred more than a year before the

filing of this action. The conduct complained of, while if true would

undoubtedly be an annoyance, does not rise to the level of persistent and

threatening harassment. There simply is no evidence of threatening

conduct. As such, the petition is denied."

{¶ 19} In Olenik, the Fifth Appellate District upheld the granting of a

civil stalking protectlosz order. The court held that "to be entitled to a

stalking civil protection order, the petitioner must show, by a preponderance

of the evidence that the respondent engaged in a violation of R.C. §2903.211,

the menacing by stalking statute, against the person seeking the order." Id.

at 123. The court went on to note that:

{¶ 20} "At the hearing, appellee provided a significant amount of

evidence showing that a number of threatening incidents took place between

August 25, 2002 and September 6, 2002. The trial court found that these

incidents constituted threats of bodily harm which individually and

collectively caused Appellee mental distress and that Appellee's fear was

reasonable in light of same. Moreover, the trial court found Appellee's

allegations to be credible. The trial court concluded that this conduct was

sufficient to cause Appellee to believe that Appellant would cause her

physical harm." (Emphasis added.) Id. at 125.

1121) Similarly in this case, the testimony revealed that Ghaster

engaged in a pattern of threatening incidents. Although, the trial court

found that Ghaster never threatened physical harm against the Rausers,

"explicit or direct threats of physical harm are not necessary to establish a

violation of R.C. 2903.211(A). Rather, the test is whether the offender, by

engaging in a pattern of conduct, knowingly caused another to believe the

offender would cause physical harm to him or her." Kramer v. Kramer,

Seneca App. N0.ff 13-02-03, 2002-Ohio-4383,115. Ghaster repeatedly t;^l::

the Rausers such things as "you will be sorry" and "pay back will be a b----,"

as she camped near their house for hours at a time. Her behavior amounted

to "a pattern of conduct" of knowingly causing the Rausers to believe she

would cause them physical harm.

11221 Further, we find the trial court's citation to Nwosu is misplaced.

In that case, a civil stalking protection order was granted against the

respondent mother and in favor of stepmother petitioner. The evidence at

the hearing demonstrated that on three occasions the respondent mother

went to the petitioner's home to get her son for her visitation with him. The

first time, by petitioner's own admission, petitioner and respondent had a

friendly interaction. The second and third times, petitioner was not at home,

but learned of respondent's presence at her home from other family members.

On each of the three occasions, respondent was accompanied by a local police

officer to document what was occurring because she and her child's father had

had problems in the past with visitation. By petitioner's own admission,

respondent was "wise" for bringing a police officer.

{1[23} In reversing the trial court's judgment granting a civil stalking

protection order, the court stated the following:

{¶ 24} "The testimony clearly shows that the crux of this issue centers

around [the father's and respondent mother's] visitation schedule, to which

[petitioner] is not a party, and to which she acknowledges no in•;^o;vcment.

We do not doubt that [petitioner] has been placed in an uncomfortable

situation due to the circumstances between [respondent mother and father]

and that she is troubled by the police coming to her home three times within

seven days; however, we have previously noted that 'R.C. 2903.211 and R.C.

2903.214 were not enacted for the purpose of alleviating uncomfortable

situations, but to prevent the type of persistent and threatening harassment

that leaves victims in constant fear of physical danger.' Kramer at T17.

[Respondent mother's] request for a police officer's presence is both legitimate

and lawful, and [petitioner] acknowledged that such a plan is a good idea.

[Petitioner's] claimed reaction to the visits with the police is neither

reasonable nor foreseeable. Moreover, requesting the presence of police to

keep the peace should never form the basis for a CSPO. On this record,

there is insufficient evidence to support the issuance of a CSPO." Nwosu at

116.

{¶ 25} Ghaster's behavior toward the Rausers was more than an

"uncomfortable situation"; it was "persistent and threatening harassment"

that left the Rausers "in constant fear of physical danger." Moreover,

Ghaster's behavior also caused the Rausers mental distress. Laurie had to

seek professional help and use prescription medicine. As an example of her

mental distress, Laurie told the court:

{¶26} "I don't sleep through the night. I get up ever^ three hours

and check all my doors, even though I know I locked them and I checked them

already. [Our daughter] has French doors that open directly facing

[Ghaster's] house. I get up probably every couple hours and make sure that

the doors are locked and that the alarms are on. And I don't ever leave her

out of my sight."

{¶ 27} As to Richard's mental distress, he aptly summed it up: "If

anyone in your family is unhappy, it affects everybody."

{¶ 28) In regard to the trial court's insinuation of friendly encounters

between Laurie and Ghaster while they were on the same roadway, the

occurrences must be put in context. Specifically, the encounters occurred in

April 2008, approximately a year-and-a-half after the Rausers' relationship

with Ghaster had soured, just days prior to the criminal trial against Ghaster

on charges relative to her behavior toward the Rausers, and while the

Rausers had a temporary protection order against Ghaster.

11291 Laurie described the encounters as follows. As she was driving

on a roadway with light traffic on a Saturday morning, she "noticed a car

following pretty close behind" her. While she was stopped at a light, the car

pulled up behind her, "then really slowly pulled around over to the side of

[her], very close, on the passenger's side[.]" Laurie was then able to see that

the car was driven by Ghaster, who rolled down her window and waved to

Laurie. Laurie testified that she was "mortified," auna': called Richard and the.

Rocky River prosecutor, who advised her to file a police report, which she did.

While driving later that same day, Laurie saw Ghaster again, who waved at

her again. Under the totality of the circumstances, the encounters were not

friendly; they were more of Ghaster's menacing behavior toward the Rausers.

1130) Finally, we comment on the trial court's finding that the

complained-of behavior occurred more than a year before the filing of this

action. The record however, demonstrates that although Ghaster's menacing

behavior toward the Rausers started in October 2006, it more or less

persisted up until the time of the filing of this action.4

IV

{¶ 31} In light of the above, the Rausers presented competent, credible

evidence on each element of inenacing by stalking and, therefore, the directed

verdict at the close of their evidence was error.

{¶ 32} Reversed and remanded for further proceedings consistent with

this opinion.

It is ordered that appellants recover from appellee 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.

°The Rausers had a reprieve from Gha-=er's behavior during the winter andspring of 2006-2007, and again from the end oi'"":':,`7 through April 2008 (the recordindicates that Ghaster was incarcerated on unrelated charges during the time of thesecond reprieve).

A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.

CHRISTINE T. McMONAGLE, PRESIDING JUDGE

PATRICIA A. BLACKMON, J., andMELODY J. STEWART, J., CONCUR