[Cite as State v. Reber, 2012-Ohio-2712.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : Hon. Julie A. Edwards, J. -vs- : : Case No. 11-CA-107 & 11-CA-117 PAMELA REBER : : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 11-CRB-00410
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: June 13, 2012
APPEARANCES:
For Appellant: For Appellee:
ANDREW T. SANDERSON TRICIA M. MOORE 21 West Church Street Assistant Law Director Suite 201 40 W. Main St. Newark, OH 43055 Newark, OH 43055 [Cite as State v. Reber, 2012-Ohio-2712.]
Delaney, J.
{¶1} Appellant Pamela Reber appeals from the judgment of the Licking
County Municipal Court finding her guilty of three counts of violation of a civil
protection order.
FACTS AND PROCEDURAL HISTORY
{¶2} Reber and Charles Smitley have known each other for ten or eleven
years, dated on and off during that time, and were married for a little over a year and a
half. Their marriage ended on July 19, 2011, after Reber filed for divorce.
{¶3} Prior to the divorce, however, the relationship was fraught. Smitley
sought and obtained a civil protection order against Reber on January 27, 2011, and
the final order was filed on February 28, 2011. Reber was served with the temporary
civil protection order on January 31, 2011, and with the final civil protection order on
March 1, 2011. At trial, the parties stipulated that a valid protection order was in effect
on behalf of Smitley.
{¶4} Reber was charged with three counts of violation of a civil protection
order pursuant to R.C. 2919.27 for three contacts with Smitley. The following facts
were adduced at the bench trial.
{¶5} On February 11, 2011, Smitley received a text from phone number 740-
294-0498, which he recognized as Reber’s number. The text stated “Hi wanna talk?”
{¶6} On February 14, 2011, Smitley received another text from number 294-
0498. This text contained an image of a heart with “devil’s horns” on it. It also stated
“Hope uall have nice Valentine’s Day. Confussed (sic).” Licking County, Case No. 11-CA-107 3
{¶7} On February 24, 2011, Smitley and his friend Charles Wheeler drove to a
muffler shop. Wheeler told Smitley there was a “nut” behind them because he noticed
someone driving fast, passing another car. Smitley looked out the window and saw
Reber following them in her car, a distinctive blue Pontiac, yelling out her window.
According to Smitley, this incident happened sometime mid-day, probably between
eleven a.m. and one p.m.
{¶8} Smitley reported each of these incidents to the police, and officers
photographed the text messages.
{¶9} Several witnesses testified on behalf of Reber.
{¶10} Julia Burley, her supervisor, testified Reber worked on February 24,
2011, from 10 a.m. to 6 p.m. Appellant’s work that day included taking a mental
health client to a doctor’s appointment in Columbus at 11:30 a.m. Burley stated Reber
brought back paperwork from the appointment establishing she was there. On cross-
examination, Burley stated Reber’s time sheet shows her times in and out of the
office. There is no time stamp or clock; Reber writes in her arrivals and departures.
{¶11} Nathan Bush, Reber’s son, testified he was with his mother and one of
her clients at “KFC” on Valentine’s Day, and he didn’t see his mother call or text
anyone because she didn’t have her phone out at the restaurant. Bush did confirm
294-0948 is his mother’s telephone number.
{¶12} Reber testified on her own behalf. She denied texting Smitley on
February 11 and February 14. Regarding the February 24 incident, Reber stated she
picked up her client for the appointment in Columbus. She added, though, that she Licking County, Case No. 11-CA-107 4
saw Charles Wheeler that morning, by the muffler shop, and she drove by and said
“hi.” Reber denied seeing Smitley with Wheeler.
{¶13} At the conclusion of the bench trial, the trial court found Reber guilty as
charged, noting the evidence demonstrated the text messages came from Reber’s
phone and she admitted she was outside the muffler shop on February 24. The trial
court held the state had established Reber was reckless as to being near Smitley.
The court further noted the text incidents were the least serious forms of the offense
and sentenced Reber to a fine of fifty dollars plus court costs on each count. On the
third count, for the February 24 run-in at the muffler shop, Reber received a fine of
$100 plus court costs, and 30 days in jail with all 30 suspended on the condition that
she has no further contact with Smitley.
{¶14} Reber appeals from the judgment entry of her convictions for three
counts of violation of civil protection order.
{¶15} Reber raises three assignments of error:
{¶16} “I. THE CONVICTION OF THE DEFENDANT-APPELLANT WAS
OBTAINED WITHOUT SUFFICIENT EVIDENCE BEING PRESENTED TO
ESTABLISH EACH AND EVERY ELEMENT OF THE ‘TEXT MESSAGE’ OFFENSES.”
{¶17} “II. THE CONVICTION OF THE DEFENDANT-APPELLANT WAS
ESTABLISH EACH AND EVERY ELEMENT OF THE FEBRUARY 24, 2011
OFFENSE.”
{¶18} “III. THE CONVICTION OF THE DEFENDANT-APPELLANT WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE PRESENTED BELOW.” Licking County, Case No. 11-CA-107 5
I., II., III.
{¶19} In her three assignments of error, appellant challenges the sufficiency
and weight of the evidence at trial. These assignments of error will therefore be
considered together.
{¶20} 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 guilty 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.”
{¶21} 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, at
387, 678 N.E.2d 541. Reversing a conviction as being against the manifest weight of Licking County, Case No.
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[Cite as State v. Reber, 2012-Ohio-2712.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : Hon. Julie A. Edwards, J. -vs- : : Case No. 11-CA-107 & 11-CA-117 PAMELA REBER : : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 11-CRB-00410
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: June 13, 2012
APPEARANCES:
For Appellant: For Appellee:
ANDREW T. SANDERSON TRICIA M. MOORE 21 West Church Street Assistant Law Director Suite 201 40 W. Main St. Newark, OH 43055 Newark, OH 43055 [Cite as State v. Reber, 2012-Ohio-2712.]
Delaney, J.
{¶1} Appellant Pamela Reber appeals from the judgment of the Licking
County Municipal Court finding her guilty of three counts of violation of a civil
protection order.
FACTS AND PROCEDURAL HISTORY
{¶2} Reber and Charles Smitley have known each other for ten or eleven
years, dated on and off during that time, and were married for a little over a year and a
half. Their marriage ended on July 19, 2011, after Reber filed for divorce.
{¶3} Prior to the divorce, however, the relationship was fraught. Smitley
sought and obtained a civil protection order against Reber on January 27, 2011, and
the final order was filed on February 28, 2011. Reber was served with the temporary
civil protection order on January 31, 2011, and with the final civil protection order on
March 1, 2011. At trial, the parties stipulated that a valid protection order was in effect
on behalf of Smitley.
{¶4} Reber was charged with three counts of violation of a civil protection
order pursuant to R.C. 2919.27 for three contacts with Smitley. The following facts
were adduced at the bench trial.
{¶5} On February 11, 2011, Smitley received a text from phone number 740-
294-0498, which he recognized as Reber’s number. The text stated “Hi wanna talk?”
{¶6} On February 14, 2011, Smitley received another text from number 294-
0498. This text contained an image of a heart with “devil’s horns” on it. It also stated
“Hope uall have nice Valentine’s Day. Confussed (sic).” Licking County, Case No. 11-CA-107 3
{¶7} On February 24, 2011, Smitley and his friend Charles Wheeler drove to a
muffler shop. Wheeler told Smitley there was a “nut” behind them because he noticed
someone driving fast, passing another car. Smitley looked out the window and saw
Reber following them in her car, a distinctive blue Pontiac, yelling out her window.
According to Smitley, this incident happened sometime mid-day, probably between
eleven a.m. and one p.m.
{¶8} Smitley reported each of these incidents to the police, and officers
photographed the text messages.
{¶9} Several witnesses testified on behalf of Reber.
{¶10} Julia Burley, her supervisor, testified Reber worked on February 24,
2011, from 10 a.m. to 6 p.m. Appellant’s work that day included taking a mental
health client to a doctor’s appointment in Columbus at 11:30 a.m. Burley stated Reber
brought back paperwork from the appointment establishing she was there. On cross-
examination, Burley stated Reber’s time sheet shows her times in and out of the
office. There is no time stamp or clock; Reber writes in her arrivals and departures.
{¶11} Nathan Bush, Reber’s son, testified he was with his mother and one of
her clients at “KFC” on Valentine’s Day, and he didn’t see his mother call or text
anyone because she didn’t have her phone out at the restaurant. Bush did confirm
294-0948 is his mother’s telephone number.
{¶12} Reber testified on her own behalf. She denied texting Smitley on
February 11 and February 14. Regarding the February 24 incident, Reber stated she
picked up her client for the appointment in Columbus. She added, though, that she Licking County, Case No. 11-CA-107 4
saw Charles Wheeler that morning, by the muffler shop, and she drove by and said
“hi.” Reber denied seeing Smitley with Wheeler.
{¶13} At the conclusion of the bench trial, the trial court found Reber guilty as
charged, noting the evidence demonstrated the text messages came from Reber’s
phone and she admitted she was outside the muffler shop on February 24. The trial
court held the state had established Reber was reckless as to being near Smitley.
The court further noted the text incidents were the least serious forms of the offense
and sentenced Reber to a fine of fifty dollars plus court costs on each count. On the
third count, for the February 24 run-in at the muffler shop, Reber received a fine of
$100 plus court costs, and 30 days in jail with all 30 suspended on the condition that
she has no further contact with Smitley.
{¶14} Reber appeals from the judgment entry of her convictions for three
counts of violation of civil protection order.
{¶15} Reber raises three assignments of error:
{¶16} “I. THE CONVICTION OF THE DEFENDANT-APPELLANT WAS
OBTAINED WITHOUT SUFFICIENT EVIDENCE BEING PRESENTED TO
ESTABLISH EACH AND EVERY ELEMENT OF THE ‘TEXT MESSAGE’ OFFENSES.”
{¶17} “II. THE CONVICTION OF THE DEFENDANT-APPELLANT WAS
ESTABLISH EACH AND EVERY ELEMENT OF THE FEBRUARY 24, 2011
OFFENSE.”
{¶18} “III. THE CONVICTION OF THE DEFENDANT-APPELLANT WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE PRESENTED BELOW.” Licking County, Case No. 11-CA-107 5
I., II., III.
{¶19} In her three assignments of error, appellant challenges the sufficiency
and weight of the evidence at trial. These assignments of error will therefore be
considered together.
{¶20} 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 guilty 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.”
{¶21} 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, at
387, 678 N.E.2d 541. Reversing a conviction as being against the manifest weight of Licking County, Case No. 11-CA-107 6
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.
{¶22} We further note issues relating to the credibility of witnesses and the
weight to be given to the evidence are primarily for the trier of fact. Seasons Coal v.
Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). In the instant case, the
trier of fact was the trial court.
{¶23} Appellant was found guilty of three counts of violation of protection order
pursuant to R.C. 2919.27(A)(1). That section states, “No person shall recklessly
violate the terms of any of the following: [a] protection order issued * * * pursuant to
section * * * 3113.31 of the Revised Code.” “Recklessly” is defined by R.C.
2901.22(C):
A person acts recklessly when, with heedless indifference to the consequences,
he perversely disregards a known risk that his 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, he perversely disregards a known risk that such circumstances
are likely to exist.
{¶24} First, Reber argues that the state presented insufficient evidence the text
messages came from Reber; she asserts further investigation should have been done,
such as calling the number to demonstrate whether Reber answered, or obtaining
“records” to show a link between Reber and the number. We disagree, and find the
state presented sufficient evidence the text messages originated from Reber. Smitley
recognized the number as Reber’s. While Reber wants to “deal[] only with the Licking County, Case No. 11-CA-107 7
government’s case in chief and not the testimony and evidence offered by the defense
to counter the same,” we note Reber’s son testified 294-0498 was his mother’s
number and Reber herself testified the number was hers, although she claimed to
have given the phone away.
{¶25} Reber points to the decision of the Second District Court of Appeals in
Dayton v. Glisson, 36 Ohio App.3d 159, 521 N.E.2d 853 (2nd Dist.1987), in which the
court found insufficient evidence of telephone harassment where there were two
subscribers to a line from which anonymous, silent calls were placed. In the instant
case, however, we note the context of the texts themselves relates to the relationship
between Reber and Smitley, and there was sufficient evidence the texts originated
from Reber’s phone. In other words, Reber did not successfully rebut the inference
she texted Smitley. See, State v. Thornstenson, 5th Dist. No. 92-CA-05, 1992 WL
207031 (Aug. 24, 1992), appeal dismissed, 65 Ohio St.3d 1489 (1993), at *2.
{¶26} Reber also maintains insufficient evidence exists she was reckless with
regard to the February 24 incident. The terms of Smitley’s protection order include,
e.g.:
***.
6. RESPONDENT SHALL STAY AWAY FROM PETITIONER and all other
protected persons named in this Order and not be present within 500 feet
(distance) of any protected persons wherever those protected persons may be
found, or any place the Respondent knows or should know the protected
persons are likely to be, even with Petitioner’s permission. If Respondent
accidentally comes in contact with protected persons in any public or private Licking County, Case No. 11-CA-107 8
place, Respondent must depart immediately. This Order includes encounters
on public and private roads, highways, and thoroughfares. [NCIC 04]
7. RESPONDENT SHALL NOT INITIATE OR HAVE ANY CONTACT with the
protected persons named in this order or their residences, businesses, places
of employment, schools, day care centers, or child care providers. Contact
includes, but is not limited to, telephone, fax, e-mail, voice mail, delivery
service, writings, or communications by any other means in person or through
another person. Respondent may not violate this order even with the
permission of protected person. [NCIC 05]
* * *.
(Emphasis in original.)
We find sufficient evidence exists appellant was reckless with regard to violation of the
protection order on February 24, 2011. By Reber’s own testimony, she was present
outside the muffler shop and drove by yelling out the window.
{¶27} Having weighed the record, we find there was sufficient evidence, if
believed by the finder of fact, to establish appellant violated the protection order on
each of the indicated dates. As a reviewing court, we will not reverse a verdict where
there is substantial evidence presented which, if believed, could reasonably convince
the finder of fact that all elements of the offense have been proven beyond a
reasonable doubt. Licking County, Case No. 11-CA-107 9
{¶28} Appellant’s three assignments of error are overruled and the judgment of
the Licking County Municipal Court is affirmed.
By: Delaney, P.J.
Hoffman, J. and
Edwards, J. concur.
HON. PATRICIA A. DELANEY
HON. WILLIAM B. HOFFMAN
HON. JULIE A. EDWARDS [Cite as State v. Reber, 2012-Ohio-2712.]
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : PAMELA REBER : : : Case No. 11-CA-107 Defendant-Appellant :
For the reasons stated in our accompanying Opinion on file, the judgment of the
Licking County Municipal Court is affirmed. Costs assessed to Appellant.
HON. JULIE A. EDWARDS IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
STATE OF OHIO : : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : PAMELA REBER : : : Case No. 11-CA-117 Defendant-Appellant :
For the reasons stated in our accompanying Opinion on file, the judgment of the
Licking County Municipal Court is affirmed. Costs assessed to Appellant.
HON. JULIE A. EDWARDS