State v. Haugh

2024 Ohio 79

• Court: Ohio Court of Appeals
• Decided: January 11, 2024
• Docket: 2023AP020009
• Status: Published

Opinion

[Cite as State v. Haugh, 2024-Ohio-79.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. John W. Wise, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 2023AP020009 : WILSON C. HAUGH, JR. : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County Court of Common Pleas, Case No. 2021CR030093

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: January 11, 2024

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

RYAN STYER GEORGE URBAN TUSCARAWAS CO. PROSECUTOR 116 Cleveland Ave. NW, Ste. 808 KRISTINE W. BEARD Canton, OH 44702 125 E. High Ave. New Philadelphia, OH 44663 [Cite as State v. Haugh, 2024-Ohio-79.]

Delaney, J.

{¶1} Appellant Wilson C. Haugh, Jr. appeals from the March 15, 2023 Judgment

Entry on Sentencing of the Tuscarawas County Court of Common Pleas. Appellee is the

state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} The following evidence is adduced from the record of appellant’s jury trial.

{¶3} Appellant and Jane Doe were married for 7 years and lived in Tuscarawas

County. They had one child together, Mary Doe. In 2014, Jane Doe left the marital

residence, filed for an annulment, and obtained a civil protection order (CPO) against

appellant which expired in one year. Appellant moved to Lorain County and filed for

divorce there. The divorce was final in October 2015. Appellant continued to live in Lorain

County, and Jane and Mary Doe continued to live in Tuscarawas County.

{¶4} Jane Doe’s original CPO expired and she sought another. On March 6,

2018, a “Domestic Violence Civil Protection Order (CPO) Full Hearing (R.C. 3113.31)”

was filed in the Tuscarawas County Court of Common Pleas. The named protected

persons are Jane Doe and Mary Doe, and the expiration date of the CPO is March 1,

2023. Respondent is appellant, who is ordered to, e.g., not initiate or have any contact

with Jane and Mary at their residence, workplace, or school. The order defines “contact”

as, e.g., by delivery service, “social networking media,” and communications by any

means, directly or through another person. The Sheriff’s Return states the CPO was

personally served on appellant on March 16, 2018.1

1 Appellee’s Exhibit A. [Cite as State v. Haugh, 2024-Ohio-79.]

{¶5} In 2018, Jane called police because appellant violated the CPO and appellant

was ultimately convicted of misdemeanor violation of a protection order pursuant to R.C.

2919.27. Appellee’s Exhibit B is a certified copy of appellant’s conviction in the New

Philadelphia Municipal Court upon one count of violation of a protection order. Appellant

entered a counseled plea of no contest and was found guilty on or around April 23, 2018.

{¶6} On or around November 10, 2020, an Amazon package arrived at the

residence of Jane and Mary Doe, addressed to Mary. The package contained a blanket.

Appellee’s Exhibit C is a photograph taken by Officer Boyd of the New Philadelphia Police

Department. The photo shows a blanket depicting an air-mail envelope containing the

following printed message: “To My Daughter: Even when I’m not close by, I want you to

know I love you and I’m so proud of you. Wrap yourself up in this and consider it a big

hug! Love, Dad.” During his pro se opening statement at trial and throughout the

proceedings, appellant admitted he sent Mary Doe this blanket. T. 128.

{¶7} On January 8, 2021, Jane Doe reported appellant contacted her in a group

chat via Facebook Messenger. Appellee’s Exhibit D is a printout of a Facebook

Messenger group chat including two postings of a meme, both posted by “Wilson,” of a

menacing Santa Claus figure with the words, “PARENTAL ALIENATION[:] If a child only

sees one parent this holiday YOU KNOW WHO THE ABUSER IS.” Jane testified the

Facebook Messenger group is “old” but includes Jane, appellant, and family members on

both sides.

{¶8} Jane reported both incidents to the New Philadelphia Police Department

because appellant violated the terms of the CPO and put her in fear for her own and [Cite as State v. Haugh, 2024-Ohio-79.]

Mary’s safety. Officers confirmed appellant’s prior conviction and collected evidence,

including the photograph of the blanket and the printout of the group chat.

{¶9} Appellant was charged by indictment with one count of violation of a

protection order pursuant to R.C. 2919.27(A)(1) and (B)(3)(C), a felony of the fifth degree,

and entered a plea of not guilty. Appellant was represented by several attorneys in the

history of the case but represented himself at trial with standby counsel. Appellant moved

for a judgment of acquittal at the close of the evidence; the motion was overruled.

{¶10} Appellant was found guilty as charged. The jury also found appellant had

a prior conviction for violation of a CPO. The trial court ordered a pre-sentence

investigation and deferred sentencing. Appellant was later sentenced to a term of one

year of community-control supervision and 75 hours of community service.

{¶11} Appellant now appeals from the trial court’s entry of conviction and

sentence.

{¶12} Appellant raises two assignments of error:

ASSIGNMENTS OF ERROR

{¶13} “I. APPELLANT’S CONVICTIONS WERE AGAINST THE MANIFEST

WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”

{¶14} “II. THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANT’S

CRIMINAL RULE 29 MOTION FOR ACQUITTAL BECAUSE THE STATE FAILED TO

PRODUCE SUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION AGAINST

APPELLANT.” [Cite as State v. Haugh, 2024-Ohio-79.]

ANALYSIS

I., II.

{¶15} Appellant’s two assignments of error are related and will be considered

together. He argues his conviction upon one count of violation of a protection order is not

supported by sufficient evidence and is against the manifest weight of the evidence, and

the trial court should have granted his motion for acquittal pursuant to Crim.R. 29(A). We

disagree.

{¶16} Appellant argues his conviction is supported by insufficient evidence. The

legal concepts of sufficiency of the evidence and weight of the evidence are both

quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380, 1997-

Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review for a

challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio St.3d

259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio Supreme

Court held, “An appellate court's function when reviewing the sufficiency of the evidence

to support a criminal conviction is to examine the evidence admitted at trial to determine

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

guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the

evidence in a light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime proven beyond a reasonable doubt.”

{¶17} Appellant argues that the trial court erred when it denied his Crim.R. 29

motion for acquittal. Pursuant to Crim.R. 29(A), a court “shall order the entry of the

judgment of acquittal of one or more offenses * * * if the evidence is insufficient to sustain

a conviction of such offense or offenses.” Because a Crim.R. 29 motion questions the [Cite as State v. Haugh, 2024-Ohio-79.]

sufficiency of the evidence, “[w]e apply the same standard of review to Crim.R. 29 motions

as we use in reviewing the sufficiency of the evidence.” Whether the evidence is legally

sufficient to sustain a verdict is a question of law. Id. at ¶ 38, citing State v. Thompkins,

78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). “Sufficiency is a test of adequacy.” Id.

“We construe the evidence in a light most favorable to the prosecution and determine

whether a rational trier of fact could have found the essential elements of the offense

proven beyond a reasonable doubt.” Id., citing State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991), paragraph two of the syllabus.

{¶18} Appellant also argues his conviction is against the manifest weight of the

evidence. In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the

entire record, weighs the evidence and all reasonable inferences, considers the credibility

of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly

lost its way and created such a manifest miscarriage of justice that the conviction must

be overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.

Reversing a conviction as being against the manifest weight of the evidence and ordering

a new trial should be reserved for only the “exceptional case in which the evidence weighs

heavily against the conviction.” Id.

{¶19} Upon a challenge to the weight of the evidence, the issue is whether the

jury created a manifest miscarriage of justice in resolving conflicting evidence, even

though the evidence of guilt was legally sufficient. State v. Ashcraft, 5th Dist. Richland

No. 2021-CA-0024, 2023-Ohio-2378, ¶ 14, citing State v. Thompkins, 78 Ohio St.3d 380,

386–387, 678 N.E.2d 541 (1997). “Weight of the evidence” addresses the evidence's [Cite as State v. Haugh, 2024-Ohio-79.]

effect of inducing belief. State v. Thompkins, supra, 78 Ohio St.3d at 386-387, 678 N.E.2d

541 (1997), State v. Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶ 83.

When a court of appeals reverses a judgment of a trial court on the basis that the verdict

is against the weight of the evidence, the appellate court sits as a “thirteenth juror” and

disagrees with the fact finder's resolution of the conflicting testimony. Thompkins at 387,

678 N.E.2d 541, citing Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652

(1982) (quotation marks omitted); State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202,

865 N.E.2d 1244, ¶ 25, citing Thompkins.

{¶20} Once the reviewing court finishes its examination, an appellate court may

not merely substitute its view for that of the jury, but must find that “ ‘the jury clearly lost

its way and created such a manifest miscarriage of justice that the conviction must be

reversed and a new trial ordered.’ ” State v. Thompkins, supra, 78 Ohio St.3d at 387,

quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist.

1983). The Ohio Supreme Court has emphasized: “ ‘[I]n determining whether the

judgment below is manifestly against the weight of the evidence, every reasonable

intendment and every reasonable presumption must be made in favor of the judgment

and the finding of facts. * * *.’ ” Eastley v. Volkman, 132 Ohio St.3d 328, 334, 972 N.E.2d

517, 2012-Ohio-2179, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80,

461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review,

Section 603, at 191–192 (1978).

{¶21} Appellant was found guilty upon one count of violation of a protection order

pursuant to R.C. 2919.27(A)(1) and (B)(3)(a), a felony of the fifth degree. Those sections

state: [Cite as State v. Haugh, 2024-Ohio-79.]

(A) No person shall recklessly violate the terms of any of the

following:

(1) A protection order issued or consent agreement approved

pursuant to section 2919.26 or 3113.31 of the Revised Code;

* * * *.

(B)(1) Whoever violates this section is guilty of violating a

protection order.

(3) Violating a protection order is a felony of the fifth degree if

the offender previously has been convicted of, pleaded guilty to, or

been adjudicated a delinquent child for any of the following:

(a) A violation of a protection order issued or consent

agreement approved pursuant to section 2151.34, 2903.213,

2903.214, 2919.26, or 3113.31 of the Revised Code[.]

{¶22} R.C. 2901.22(C) defines the culpable mental state of “reckless” as:

A person acts recklessly when, with heedless indifference to

the consequences, the person disregards a substantial and

unjustifiable risk that the person's conduct is likely to cause a certain

result or is likely to be of a certain nature. A person is reckless with

respect to circumstances when, with heedless indifference to the

consequences, the person disregards a substantial and unjustifiable

risk that such circumstances are likely to exist. [Cite as State v. Haugh, 2024-Ohio-79.]

{¶23} Appellant argues his conduct did not violate the terms of the CPO because

he reasonably believed the terms of a Lorain County domestic relations order “overrode

the issues of contact with the minor child.” Brief, 6. Appellant further argues sending a

“loving note to a child from her father” cannot be a criminal violation and there is no

evidence the parental-alienation meme was intended to be seen by Jane Doe.

{¶24} We disagree with appellant’s characterization of the evidence. As appellee

points out, appellant was charged with one violation for a course of conduct in which he

contacted Mary and Jane Doe twice. Appellee established Jane Doe obtained a CPO on

March 6, 2018, which was valid for 5 years. The terms of the CPO stated appellant was

to have no contact with Jane and Mary Doe directly or indirectly, including by delivery and

by electronic communication. Appellant admittedly sent the package containing the

blanket to Mary Doe at the Doe residence, although he implies this contact was permitted

by his visitation order from Lorain County. Appellant claims there is no evidence the

Facebook Messenger meme was posted by him, but the evidence at trial showed the

meme was posted in a Messenger group containing appellant and Jane Doe; the meme

stated it was posted by “Wilson;” the context of the message was consistent with

appellant’s claims against Jane; and there was a strong likelihood Jane would see the

meme or learn of it because she and her family members were in the Facebook group.

{¶25} We find sufficient evidence that appellant’s conduct was reckless in

contacting Mary and Jane Doe in violation of the CPO. Appellant knew of the existence

of the CPO and blatantly disregarded its terms. See, State v. Morgan, 5th Dist. Stark No.

2009 CA 00130, 2010-Ohio-4858, ¶ 25 [despite out-of-state domestic relations order,

defendant was reckless in violating terms of CPO prohibiting harassing communication]; [Cite as State v. Haugh, 2024-Ohio-79.]

State v. Zobel, 5th Dist. Tuscarawas No. 2016 AP 03 0019, 2016-Ohio-5751, ¶ 43 [state

presented evidence CPO was in effect when defendant was arrested, defendant knew it

was in effect, and defendant entered onto victim’s property in violation of such order];

State v. Devoll, 5th Dist. Muskingum No. CT2023-0015, 2023-Ohio-3574, ¶¶ 13-14

[defendant’s conduct reckless when he assumed CPO had been lifted despite no

evidence of such].

{¶26} Moreover, we note appellant was convicted of violating the CPO in 2018, a

fact found by the jury. His continued contact with the victims was therefore reckless as

to violating a civil protection order. State v. Hall, 5th Dist. No. 12CAA030017, 2013-Ohio-

660, 989 N.E.2d 111, ¶ 29, appeal allowed, cause remanded on other grounds, 135 Ohio

St.3d 1456, 2013-Ohio-2285, 988 N.E.2d 576.

{¶27} Viewing the evidence in a light most favorable to appellee, we find the jury

could have found the essential elements of violation of a protection order proven beyond

a reasonable doubt. State v. Ybarra, 5th Dist. Licking No. 17-CA-26, 2017-Ohio-9144, ¶

26 [defendant violated CPO by driving through trailer park where victim lived]. The trial

court therefore did not err in overruling the motion for acquittal.

{¶28} We further find this is not an “exceptional case in which the evidence weighs

heavily against the conviction.” State v. Thompkins, 78 Ohio St.3d 380, 386–387, 678

N.E.2d 541 (1997), quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. Based upon

the entire record in this matter we find appellant's conviction for violation of a CPO is not

against the manifest weight of the evidence. To the contrary, the jury appears to have

fairly and impartially decided the matters before them. The jury heard the witnesses,

evaluated the evidence, and was convinced of appellant's guilt. [Cite as State v. Haugh, 2024-Ohio-79.]

{¶29} Appellant’s two assignments of error are overruled.

CONCLUSION

{¶30} Appellant’s two assignments of error are overruled and the judgment of the

Tuscarawas County Court of Common Pleas is affirmed.

By: Delaney, J.,

Hoffman, P.J. and

Wise, J., concur.