[Cite as State v. Schmitz, 2012-Ohio-2979.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )
STATE OF OHIO C.A. Nos. 11CA010043 11CA010044 Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE DAVID W. SCHMITZ COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO Appellant CASE Nos. 10CR081122 10CR081326
DECISION AND JOURNAL ENTRY
Dated: June 29, 2012
MOORE, Presiding Judge.
{¶1} Defendant-Appellant, David Schmitz, appeals from his convictions in the Lorain
County Court of Common Pleas. This Court affirms.
I.
{¶2} Schmitz and Sandy Kalb met in the fall of 2007 when Schmitz hired Kalb to work
alongside him as the administrative assistant for his computer company. At the time Schmitz
hired Kalb, she was recovering from an ongoing addiction to heroin. Kalb and her family had
struggled for years with Kalb’s heroin addiction, and her addiction also soon became a focal
point in Schmitz and Kalb’s relationship. According to Schmitz, the two became romantically
involved and, from that point on, he tried to aid Kalb in fighting her addiction. According to
Kalb, she only used Schmitz to feed her addiction because he would give her money to purchase
drugs. Schmitz’ involvement with Kalb quickly affected other members of her family; namely,
her parents and her older sister, Lisa Dietsche. 2
{¶3} Several events that occurred between February and April 2008 led Dietsche and
her family to get a civil protection order against Schmitz. Kalb had resumed her heroin use by
February 2008 and stole three checks from Schmitz to support her habit. On February 22, 2008,
Kalb hysterically informed her family that Schmitz had placed a poster with pictures of Kalb and
her five year old daughter outside a drug house she frequented in Cleveland. The writing on the
poster read: “I miss my mommy. She is out getting high on heroin.” Later that same day, Kalb’s
father, Bert Elgar, spoke with Schmitz on the phone. Schmitz informed Elgar that he had posted
numerous pictures of Kalb, not just the ones she found on the poster. Elgar demanded that
Schmitz find and remove the pictures, but Schmitz claimed that would be impossible because he
had distributed hundreds of pictures. The following day, Elgar found a garbage bag with a bow
attached to it outside his home. The bag contained pictures of Kalb that bore additional captions,
such as “Dope, for dope” and “I don’t cope. I use dope.” A letter also was attached to the bag.
In the letter, Schmitz purported to explain his rationale for the pictures, but also wrote:
I’ve picked up nearly all of the pictures (244 – I tried) all of which have been destroyed except the enclosed 2 (only 2 different pictures printed) 24 are out there somewhere assuming I counted right. [T]he third picture I just printed thinking she may pull strenth (sic) and hope from looking at it. Sorry it did not come out all that great but I’ve pretty much destroyed the printer heads, used up 3 full sets of ink cartigdes (sic) and the picture was only 640x480 in resolution (good for a 4x6 inch print not 16x20)[.]
The letter also contained multiple statements encouraging Kalb’s family to address their
problems and seek help for Kalb.
{¶4} Matters escalated when Schmitz actually learned that Kalb had stolen three
checks from him and had been arrested for heroin possession. After Kalb entered a rehabilitation
center, Schmitz left a box at a Greyhound bus station near the center. The box contained several
items for Kalb, including food, a cell phone, letters, and some clothing. Kalb’s sister Dietsche, a 3
detective for the Elyria Police Department, was contacted about the box because it was labeled
with Kalb’s name, but also identified Kalb as the sister of Detective Lisa Dietsche. Schmitz also
sent two emails to Kalb’s father. In the emails, Schmitz complained about Kalb having taken
money from him and asked Bert Elgar to give Kalb a message. Specifically, he asked him to tell
Kalb that, if she did not speak with Schmitz and arrange to repay him for the money she stole, he
would, as a public service announcement, give “every household in [L]orain” a picture of Kalb
and her daughter entitled “I miss my mommy. She is an addict. Are you or someone you
know?” Schmitz also wrote:
You can forward this to police – they will tell me to knock it off
You can try to sue over pic – however I am almost done digitally creating psa from scratch – the likeness is coincedental – case won’t hold
you could shoot me – if you could find me
you could let me run with it – not much of choice
or [Kalb] can make amends
(Sic.) Schmitz further wrote: “If I have to spend money I’d just assume ‘destroy’ [Kalb] after
what she has done to me.” Around the same period of time, Schmitz decided to press charges
against Kalb for the checks she had stolen.
{¶5} Due to Schmitz’ alarming behavior, Dietsche and her parents filed a criminal
complaint against him in Oberlin Municipal Court. Schmitz ultimately pleaded guilty to
disorderly conduct, and the court issued a suspended sentence as well as a no contact order,
directing Schmitz not to contact Kalb’s family. After the no contact order issued, however,
Schmitz entered the Elyria Police Department and left an envelope addressed to Dietsche,
containing a St. Ann’s coin that identified St. Ann as the patron saint of mothers and included the
following note: “Hold onto until she’s ready for sure.” Schmitz did not give his name at the 4
police department, but Dietsche viewed the surveillance tape from the lobby and recognized
Schmitz. As a result of the incident, Schmitz was found in violation of the no contact order and
spent 30 days in jail.
{¶6} Subsequently, Schmitz and Kalb resumed their relationship for a period of time
until Kalb once again ended it in January 2009. Schmitz then began sending Kalb letters. In one
particular letter, Schmitz blamed Kalb for ruining his Christmas holiday and wrote: “I think I’ll
quit being a chicken s*** and blow up my brains on your parents[’] front yard this July [4th.] * *
* Going to die anyway, right?” Schmitz also opened a MySpace account, listed his username as
Kalb’s, and began posting a variety of messages about Kalb’s family. All of the messages
indicated they were posted by “Sandy B nee Elgar Kalb.” In one particular message posted
November 18, 2009, Schmitz wrote that Kalb used him:
to the point where her and her older sister lisa dietsche are only 2 people in the world I’d like to see (you guess). [H]er sister more so. [H]ell if my treatment don’t work who knows. If it does when no contact order is up I am going to have some fun – that’s for sure.
Schmitz posted that Dietsche was “always medling (sic)” and had “railroaded” him through her
detective contacts, ensuring that he received 30 days in jail for simply dropping off Kalb’s St.
Ann’s coin to Dietsche. Just over a week later, Schmitz posted another message in which he
claimed that he had found a house he was interested in buying but could not buy it because
Dietsche lived next door. In his message, Schmitz named Dietsche’s street and wrote: “could
you imagine me living there I’d surely be arrested * * *.”
{¶7} Schmitz’ behavior further escalated as the summer of 2010 began. An officer in
Dietsche’s department was killed in the line of duty, and the department organized a 5k event to
honor the fallen officer. The department created a Facebook page to advertise the 5k. Schmitz
also created a Facebook page and posted on his page that he planned to attend the event. 5
Schmitz wrote: “elyria (sic) patrolmen don’t want to be friends with me – none the less will be
walking [] 5k backwards * * *.” He also posted a message on the police department’s Facebook
page in which he referenced Dietsche, her “junkie sister,” and “all of the crap that Lisa Dietsche
and her junkie sister Sandy Kalb put me through.” Later the same week, Schmitz posted a
message on his Facebook page that he planned to fly a kite at Maude Memorial Park; the park
nearby Dietsche’s home where she often took her infant son to walk. Schmitz later wrote in the
same message string that, although he tried a different park because “maude has to (sic) many
trees,” he might as well fly and break all of his kites because they “won’t do me any good soon
enough * * *.” Several hours later, he posted another message in which he wrote that he
“probablly (sic) shouldn’t post when where I’ll be – crazy stalker [might] follow me – then I’d
have to kill her.”
{¶8} As a result of her growing concern over Schmitz’ messages, Dietsche decided to
notify her supervisors of the situation as well as the police department near her home. One week
after Dietsche notified her local police department about Schmitz, she noticed a truck following
behind her car while she and her infant son were driving home from a visit to her parents.
Dietsche called her husband, a fellow police officer, and asked him to run the truck’s license
plates. Her husband then informed her that the truck belonged to Schmitz. Dietsche panicked
and called the police dispatch, but also managed to throw her car into reverse and pull behind
Schmitz when the two stopped at a red light close to her home. When the light changed, Schmitz
pulled into a Rite Aid and Dietsche waited in a nearby parking lot until the police arrived. The
incident caused Dietsche to pursue charges against Schmitz and to file for a protection order.
{¶9} The first indictment against Schmitz (Lorain County Court of Common Pleas
Case No. 10CR081122) issued on August 12, 2010, and contained the following three counts: (1) 6
retaliation, in violation of R.C. 2921.05(A); (2) menacing by stalking, in violation of R.C.
2903.211(A)(1); and (3) identity fraud, in violation of R.C. 2913.49(B)(1). Four days later,
Dietsche obtained the protection order she had sought the previous month. Nevertheless,
Dietsche saw Schmitz nine days later while she was on duty. On August 24, 2010, Dietsche
drove to the Lorain County Justice Center to bring grand jury packets to the prosecutor’s office.
Dietsche and Schmitz saw one another while Dietsche was parking her detective car and Schmitz
was walking on the courthouse sidewalk. Schmitz continued to walk toward Dietsche until he
almost reached her vehicle. He then veered quickly to walk around the corner of the courthouse,
opting to cut through the landscaping rather than remain on the sidewalk. Dietsche dismissed the
incident until she saw Schmitz again inside the courthouse. When Dietsche exited the third-floor
prosecutor’s office, she saw Schmitz walking behind two elderly women on the opposite side of
the hallway. Dietsche held her ground while Schmitz walked in her direction and stared at her.
As Schmitz drew closer, he “smirk[ed]” at Dietsche, then continued walking until he rounded a
corner and Dietsche lost sight of him. Dietsche immediately returned to the prosecutor’s office
and informed them of the situation. Although several investigators from the prosecutor’s office
searched the Justice Center, they did not find Schmitz.
{¶10} The incident at the Justice Center led to the issuance of another indictment. In
Lorain County Court of Common Pleas Case No. 10CR081326, a grand jury indicted Schmitz on
two counts: (1) violating a protection order, in violation of R.C. 2919.27(A)(2); and (2)
menacing by stalking, in violation of R.C. 2903.211(A)(1). The trial court agreed to consolidate
the two indictments against Schmitz for trial, as both cases arose from the same course of
conduct. A jury trial then took place. The jury found Schmitz guilty on all counts, but in the
case arising from the second indictment (Case No. 10CR081326), only found Schmitz guilty of 7
misdemeanor menacing rather than the felony menacing for which he was indicted. The court
issued two separate sentencing entries, but ordered the sentences to be served consecutively. The
court sentenced Schmitz to a total of five years, seven months in prison.
{¶11} Schmitz appealed from both cases, and this Court consolidated the two cases on
appeal. Schmitz’ consolidated appeal is now before this Court and raises three assignments of
error for our review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED TO THE DETRIMENT OF SCHMITZ BY NOT ORDERING A MISTRIAL.
{¶12} In his first assignment of error, Schmitz argues that the trial court erred by not
declaring a mistrial after two jurors admitted to having discussed the case with people outside the
jury. We disagree.
{¶13} “Mistrials need be declared only when the ends of justice so require and a fair
trial is no longer possible.” State v. Franklin, 62 Ohio St.3d 118, 127 (1991). “The essential
inquiry on a motion for mistrial is whether the substantial rights of the accused are adversely
affected.” State v. Wooden, 9th Dist. No. 21138, 2003-Ohio-1917, ¶ 33, quoting Wadsworth v.
Damberger, 9th Dist. No. 3024-M, 2000 WL 1226620, *2 (Aug. 30, 2000). If a defendant fails
to move for a mistrial once he discovers the grounds that would form the basis for his motion,
then he forfeits all but a claim of plain error. State v. Wood, 9th Dist. No. 06CA0044-M, 2007-
Ohio-2673, ¶ 21-23.
Under Crim.R. 52(B), [p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court. By its very terms, the rule places three limitations on a reviewing court’s decision to correct an error despite the absence of a timely objection at trial. First, there must be an error, i.e., a deviation from a legal rule. Second, the error must be plain. To be 8
plain within the meaning of Crim.R. 52(B), an error must be an obvious defect in the trial proceedings. Third, the error must have affected substantial rights. We have interpreted this aspect of the rule to mean that the trial court’s error must have affected the outcome of the trial.
(Internal citations and quotations omitted.) State v. Barnes, 94 Ohio St.3d 21, 27 (2002).
Schmitz sets forth the plain error standard of review, but also asserts that it is “unclear” whether
the plain error standard applies. According to Schmitz, the standard is “unclear” because his
attorney moved for a mistrial at one point, but then did not continue with his objection.
{¶14} The transcript citations Schmitz provides for defense counsel’s mistrial request do
not contain a mistrial request. In fact, defense counsel never once uttered the word “mistrial” in
the court below. Defense counsel referred to the juror misconduct issue as “relatively
innocuous” and only ever asked the court to: (1) voir dire all the jurors on the issue, (2) dismiss
one or both of the affected jurors, and (3) admonish the remaining jurors. The court ultimately
acted in accordance with defense counsel’s requested relief. Far from having preserved the
mistrial issue, only a generous reading of the transcript supports the conclusion that Schmitz
forfeited, rather than waived, it. See, e.g., State v. Hale, 9th Dist. No. 16251, 1994 WL 64377,
*1-2 (Mar. 2, 1994) (defendant waived mistrial argument when defense counsel withdrew
motion for mistrial and requested that the trial continue). Assuming that Schmitz did forfeit
rather than waive the mistrial issue, the record reflects that the trial court did not commit plain
error.
{¶15} “When a trial court learns of an improper outside communication with a juror, it
must hold a hearing to determine whether the communication biased the juror.” State v. Phillips,
74 Ohio St.3d 72, 88 (1995). “In cases involving outside influences on jurors, trial courts are
granted broad discretion in dealing with the contact and determining whether to declare a mistrial 9
or to replace an affected juror.” Id. at 89. Furthermore, “[a] juror’s belief in his or her own
impartiality is not inherently suspect and may be relied upon by the trial court.” Id.
{¶16} Before deliberations commenced, the trial judge notified the attorneys that a
fellow jurist had called to inform him that Juror 1 contacted him and asked whether defendants
have access to the personal information jurors list on their questionnaires. The court then voir
dired each juror. Jurors 2, 3, 5, 7, 8, 9, and 13 were unaware of any outside conversation Juror 1
had or any matters concerning Juror 1. Jurors 6, 10, and 12 were not aware of Juror 1’s outside
conversation, but had heard Juror 1 express his personal opinion of Schmitz. One of those jurors
heard Juror 1 refer to Schmitz as “weird” while the others heard Juror 1 say that Schmitz was
guilty. Nevertheless, all three jurors averred that Juror 1’s comments would not affect their
ability to remain impartial. Juror 11 indicated that she vaguely heard Juror 1 reference having
contacted someone to get advice on how the proceeding would take place. Juror 11 could not be
any more specific in regard to the details of Juror 1’s reference, but admitted that she had had
concerns about the confidentiality of questionnaires. Juror 11 stated that she asked her husband
about that issue before the trial began when she first received her juror questionnaire. Juror 11
averred that she no longer had the same concerns about her privacy and that she could continue
to be impartial.
{¶17} Juror 4 learned from Juror 1 that he was friends with a judge and had asked the
judge about the confidentiality of juror questionnaires. The result of the conversation was
simply that Juror 1 told Juror 4 that jury information is a matter of public record. Juror 4 also
indicated, however, that earlier in the day she had heard Juror 1 offer his opinion as to Schmitz’
guilt. Specifically, Juror 1 indicated that he knew Schmitz to be guilty and nothing would 10
change his mind about that conclusion. Juror 4 averred that, despite her interactions with Juror
1, she could remain impartial.
{¶18} The trial court dismissed Juror 1 and reinstructed the jury about the importance of
following the court’s instructions not to discuss the matter with anyone and not to form an
opinion about the case until its completion. Schmitz makes no attempt to explain why the trial
court’s response did not sufficiently negate the need for a mistrial. See App.R. 16(A)(7). His
argument amounts to a blanket assertion that a mistrial was warranted because both Juror 1 and
Juror 11 discussed the case with outside parties. As explained above, however, Juror 11 did not
discuss “the case” with her husband. She talked with him about the jury questionnaire she
completed and did so before the case even began. And while Juror 1 did contact an outside party
during the trial, the trial court dismissed Juror 1. All of the other jurors averred either that they
were unaware of what Juror 1 had done or that they could remain impartial despite Juror 1’s
misconduct. See Phillips, 74 Ohio St.3d at 88. Schmitz has not shown that the trial court
committed plain error. His first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE EVIDENCE PRESENTED AT TRIAL WAS NOT SUFFICIENT FOR SCHMITZ’S CONVICTION.
{¶19} In his second assignment of error, Schmitz argues that his retaliation, menacing
by stalking, and identity theft convictions are based on insufficient evidence. Because Schmitz
does not challenge his conviction for violating a protection order, we limit our discussion to his
remaining convictions.
{¶20} In order to determine whether the evidence before the trial court was sufficient to
sustain a conviction, this Court must review the evidence in a light most favorable to the
prosecution. State v. Jenks, 61 Ohio St.3d 259, 273 (1991). 11
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.
Id. at paragraph two of the syllabus; see also State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).
“In essence, sufficiency is a test of adequacy.” Thompkins at 386.
{¶21} Initially, we address the statement in Schmitz’ brief that “[t]hroughout the trial it
[was] not clear that Dietsche was the complainant for the charges of menacing by stalking and
retaliation.” With the exception of the identity theft charge that pertained to Kalb, all of the
charges in the two indictments stemmed from Schmitz’ conduct toward Dietsche. The charges
against Schmitz commenced on May 14, 2008, the day he entered the Elyria Police Department
with the St. Ann’s coin while subject to a no contact order. Although the State offered testimony
and evidence of events preceding May 14, 2008, the record reflects that it did so to provide
context for the charges. With that in mind, we turn to the individual charges.
Menacing by Stalking
{¶22} The menacing by stalking statute forbids any person from “engaging in a pattern
of conduct [that] 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.” R.C.
2903.211(A)(1). Generally, menacing by stalking is a first-degree misdemeanor. R.C.
2903.211(B)(1). Certain conditions will elevate the offense to a felony, however, including
instances where the offender “made a threat of physical harm to or against the victim” or
committed the offense while subject to a protection order. R.C. 2903.211(B)(2)(b), (g). The
phrase “pattern of conduct” means “two or more actions or incidents closely related in time, 12
whether or not there has been a prior conviction based on any of those actions or incidents.”
R.C. 2903.211(D)(1). “Mental distress” means:
(a) Any mental illness or condition that involves some temporary substantial incapacity; [or]
(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.
R.C. 2903.211(D)(2)(a)-(b). “A person acts knowingly, regardless of his purpose, when 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).
{¶23} First, Schmitz argues that his convictions for menacing by stalking are based on
insufficient evidence because the State failed to set forth any evidence of Dietsche’s mental
distress. Dietsche stated several times during her testimony that she felt threatened by Schmitz.
When Schmitz brought a St. Ann’s coin to the Elyria Police Department and Dietsche found the
coin in her department mailbox along with a note declaring, “[h]old onto until she’s ready for
sure,” Dietsche testified that she was alarmed because she did not know who brought the coin
and the letter did not indicate who the sender was. Because Dietsche had just publicly
announced her own pregnancy, she was concerned about the patron saint of motherhood coin and
its cryptic note. Her level of concern caused Dietsche to bring the incident to the attention of her
supervisors. She then watched the recorded surveillance tapes from the police lobby and
recognized Schmitz.
{¶24} Dietsche testified that she gradually became more concerned as Schmitz’ behavior
escalated. From February 2009 until summer 2010, Schmitz repeatedly posted messages of 13
concern on MySpace and Facebook. Dietsche stated she was particularly concerned when she
learned through Schmitz’ posts that he knew where she lived. In one particular MySpace
message, Schmitz also wrote that Dietsche and her sister were the only two people in the world
he would like to see “you guess.” Dietsche testified that she absolutely felt threatened by that
message because she believed Schmitz meant he would like to see her dead. Dietsche then
became even more afraid when Schmitz posted a message about flying a kite in a park near her
home. She explained her fear increased because Schmitz described the park as having too many
trees, meaning that he must have actually been to the park Dietsche often frequented with her
infant. Dietsche felt that Schmitz might be planning to kill her, given that he also wrote that (1)
it did not matter if his kites broke because they “[wouldn’t] do [him] any good soon enough * *
*,” and (2) if his “crazy stalker” followed him he would “have to kill her.” Dietsche testified that
she felt Schmitz was referring to her as his “crazy stalker” because Schmitz had previously tried
to tell the police that Dietsche was the stalker, not him. Dietsche’s fear peaked when she had her
son in the car with her on July 9, 2010, and discovered Schmitz was following behind her.
Dietsche testified that she “freak[ed] out” during the incident and screamed while on the phone
with the police dispatcher.
{¶25} Apart from any specific, individual event that occurred, Dietsche testified that she
came to fear Schmitz in general because she viewed him as a “loose cannon” and believed his
behavior continually escalated. Dietsche testified that Schmitz’ entire pattern of behavior led her
to believe that he would harm her and that she feared for her own safety as well as her family’s
safety. Schmitz claims there is insufficient evidence to sustain his conviction because Dietsche
never actually said that she was incapacitated or required treatment. See R.C.
2903.211(D)(2)(a)-(b) (mental distress defined). Viewing the evidence in a light most favorable 14
to the State, however, a rational trier of fact could have concluded that the State set forth
sufficient evidence of Dietsche’s mental distress. This Court has held that:
[E]xpert testimony is not necessary to establish that a victim experienced mental distress as a result of the offender’s behavior in order to prove an element of menacing by stalking. Rather, it is the function of the trier of fact to determine whether a victim suffered mental distress as a result of the offender’s behavior. Furthermore, no evidence that psychological treatment has been undertaken is necessary.
State v. Hart, 9th Dist. No. 00CA007543, 2000 WL 1824892, *3 (Dec. 13, 2000). Dietsche
repeatedly testified that she felt threatened by Schmitz and feared for her life as well as for the
safety of her family due to the escalating pattern of menacing behavior in which Schmitz
engaged over an extended period of time. The record supports the conclusion that the State set
forth sufficient evidence of mental distress. See State v. Smith, 9th Dist. No. 25869, 2012-Ohio-
335, ¶ 21 (“Taken together, in light of [the victim’s] apparent fear of [the defendant], a
reasonable trier of fact could conclude that [he] had knowledge that his actions in driving past
[the victim’s] aunt’s home, pausing in front of [it], driving by again, and then following her in
his truck would cause [her] to believe that he would harm her.”).
{¶26} Second, Schmitz argues that his convictions for menacing by stalking are based
on insufficient evidence because the State failed to prove that he engaged in a pattern of conduct.
He argues that the State failed to set forth two or more stalking incidents “closely related in
time.” R.C. 2903.211(D)(1). In his argument, Schmitz repeatedly refers to testimony and
evidence describing events that took place before February 6, 2009. As set forth above,
however, the State only provided certain evidence for context, not as the basis for any of the
actual charges against Schmitz. The menacing by stalking charge in Schmitz’ first indictment
pertained to acts he committed between February 6, 2009, and July 9, 2010. The second
menacing by stalking charge pertained to acts Schmitz committed on August 24, 2010. The 15
events that took place before February 6, 2009, therefore, were not the basis for any of the
charges against Schmitz.
{¶27} “To determine whether two or more incidents were closely related in time, the
incidents in question should be resolved by the trier of fact considering the evidence in the
context of all the circumstances of the case.” (Internal quotations omitted.) State v. Payne, 178
Ohio App.3d 617, 2008-Ohio-5447, ¶ 12 (9th Dist.). As to the menacing conviction arising out
of Schmitz’ first indictment, Dietsche testified that, from February 2009 until the early summer
of 2010, Schmitz posted a variety of messages on MySpace about her. Back to back messages
on June 28, 2010 referenced Schmitz having visited a park near Dietsche’s home and Schmitz
having “to kill” his “crazy stalker.” Then, on July 9, 2010, Schmitz followed Dietsche and her
infant son in his truck while she drove home from visiting her parents. The record belies
Schmitz’ assertion that “[n]one of the acts [the State] delineated were closely related in time.”
As to the menacing conviction arising out of Schmitz’ second indictment, Dietsche testified that
Schmitz saw her and walked toward her twice at the Lorain County Justice Center; once on the
sidewalk, and once on the third floor of the building. To the extent Schmitz argues that he
possessed valid reasons for being in certain places and did not intend to engage in a pattern of
menacing conduct, that argument sounds in weight, not sufficiency. Viewing the evidence in a
light most favorable to the State, a rational trier of fact could have found that the State proved
that Schmitz engaged in a pattern of conduct. Accordingly, Schmitz’ argument that his
convictions for menacing by stalking are based on insufficient evidence lack merit.
Retaliation
{¶28} R.C. 2921.05(A) provides:
No person, purposely and by force or by unlawful threat of harm to any person or property, shall retaliate against a public servant, a party official, or an attorney or 16
witness who was involved in a civil or criminal action or proceeding because the public servant, party official, attorney, or witness discharged the duties of the public servant, party official, attorney, or witness.
Whoever commits the foregoing offense is guilty of retaliation. R.C. 2921.05(C).
{¶29} As outlined above, to obtain a conviction for menacing by stalking, the State must
prove that an offender caused a person either to (1) believe the offender would cause physical
harm to that person, or (2) suffer from mental distress. R.C. 2903.211(A)(1). The jury
completed an interrogatory when reaching its verdict on the first menacing by stalking charge.
In the interrogatory, the jurors found that Schmitz did not make a threat of physical harm toward
Dietsche while committing the offense of menacing by stalking. Accordingly, the jury convicted
Schmitz on the basis that he caused Dietsche mental distress. Schmitz now points to the
interrogatory relevant to the menacing by stalking charge to defend against his conviction for
retaliation. Schmitz reasons that his retaliation conviction, requiring force or an unlawful threat
of harm, is based on insufficient evidence because the jury specifically found that he did not
threaten Dietsche with physical harm.
{¶30} “[T]here is no requirement that a jury reach consistent verdicts between separate
counts * * *.” State v. Zander, 9th Dist. No. 24706, 2010-Ohio-631, ¶ 57. Moreover, the
elements of menacing by stalking and retaliation are not the same. Menacing by stalking
requires a belief “that the offender will cause physical harm” while retaliation requires an
“unlawful threat of harm.” Compare R.C. 2903.211(A)(1) with R.C. 2921.05(A). Menacing by
stalking only governs harm to “the other person” who is the subject of the offender’s menacing
while retaliation governs an unlawful threat “to any person or property.” Compare R.C.
2903.211(A)(1) with R.C. 2921.05(A). Schmitz makes no attempt to address the differences
between the two statutes. See App.R. 16(A)(7). In any event, the jury was not bound by its 17
answer to the interrogatory related to the menacing by stalking charge when it then considered
the retaliation charge. Zander at ¶ 57. The trial court specifically instructed the jury to “consider
each count in the indictment as a separate and distinct matter.” Schmitz has not raised any other
ground for challenging his retaliation conviction on the basis of sufficiency. As such, we reject
Schmitz’ argument that his retaliation conviction is based on insufficient evidence.
Identity Fraud
{¶31} “No person, without the express or implied consent of the other person, shall use,
obtain, or possess any personal identifying information of another person with intent to * * *
[h]old the person out to be the other person.” R.C. 2913.49(B)(1). Whoever violates the
foregoing provision is guilty of identity fraud. R.C. 2913.49(I)(1).
{¶32} Schmitz argues that his identity fraud conviction is based on insufficient evidence
because everyone knew the MySpace page he created actually belonged to him and not Kalb.
According to Schmitz, he never intended to hold himself out as Kalb. He only used Kalb’s name
as his “alter-ego.”
{¶33} At trial, Schmitz admitted that he created the MySpace page and posted its
entries. The MySpace exhibit the State introduced informs the reader on the top of the page that
“[S]andy [K]alb has joined MySpace!” Farther down the page, the exhibit reads “sandy b nee
elgar kalb’s MySpace Blog.” Moreover, every posted message on the page ends with “Posted by
sandy b nee elgar kalb,” “Posted by sandy kalb,” or “Posted by Sandy Kalb nee Elgar.” None of
the entries identify Schmitz as the author. Although the individuals who testified at trial knew
that Kalb was not responsible for the content of the MySpace page, they reached that conclusion
because they knew Kalb and were aware of the situation between Kalb and Smith. It would be
reasonable for any person reading the page without the benefit of that additional information to 18
assume Kalb authored one or more of the posts on the MySpace page. Viewing the evidence in a
light most favorable to the State, a rational trier of fact could have found that the State proved the
elements of identity fraud. Schmitz’ argument that his identity fraud conviction is based on
insufficient evidence lacks merit. His second assignment of error is overruled.
ASSIGNMENT OF ERROR III
SCHMITZ’S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶34} In his third assignment of error, Schmitz argues that his convictions are against
the manifest weight of the evidence.
{¶35} In determining whether a conviction is against the manifest weight of the
evidence an appellate court:
must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). A weight of the evidence challenge
indicates that a greater amount of credible evidence supports one side of the issue than supports
the other. Thompkins, 78 Ohio St.3d at 387. Further, when reversing a conviction on the basis
that the conviction was against the manifest weight of the evidence, the appellate court sits as the
“thirteenth juror” and disagrees with the factfinder’s resolution of the conflicting testimony. Id.
Therefore, this Court’s “discretionary power to grant a new trial should be exercised only in the
exceptional case in which the evidence weighs heavily against the conviction.” State v. Martin,
20 Ohio App.3d 172, 175 (1st Dist.1983). See also Otten at 340.
{¶36} Rather than set forth a separate manifest weight argument, Schmitz limited the
analysis in his brief to two statements: 19
The arguments that Schmitz’s conviction was against the manifest weight of the evidence are the same as the arguments that the relevant convictions were against the sufficient weight of the evidence. Therefore, the arguments will not be rewritten here but are incorporated as if fully rewritten.
Although Schmitz captions his assignment of error as a weight challenge, he fails to set forth
“any argument concerning the credibility of the evidence presented or the weight of the credible
evidence.” State v. Wilson, 9th Dist. No. 25100, 2011-Ohio-4072, ¶ 21. “The legal concepts of
sufficiency of the evidence and weight of the evidence are both quantitatively and qualitatively
different.” Thompkins at 386. This Court will not conduct a manifest weight analysis when an
appellant has not developed a manifest weight argument. Wilson at ¶ 21. Because Schmitz has
not developed a manifest weight argument, we do not consider the merits of his assigned error.
Schmitz’ third assignment of error is overruled.
III.
{¶37} Schmitz’ assignments of error are overruled. The judgment of the Lorain County
Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is 20
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
CARLA MOORE FOR THE COURT
BELFANCE, J. CONCURS IN JUDGMENT ONLY.
DICKINSON, J. CONCURRING.
{¶38} I concur in the majority’s judgment and all of its opinion except its refusal to
reach the merits of Mr. Schmitz’s third assignment of error. I would overrule that assignment of
error because the jury did not lose its way and create a manifest miscarriage of justice by
believing the prosecution’s evidence. See State v. Otten, 33 Ohio App. 3d 339, 340 (9th Dist.
1986).
APPEARANCES:
KENNETH N. ORTNER, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting Attorney, for Appellee.