[Cite as State v. Sims, 2012-Ohio-3106.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24763
v. : T.C. NO. 11CRB3428
BRANDI SIMS : (Criminal appeal from Municipal Court) Defendant-Appellant :
:
..........
OPINION
Rendered on the 6th day of July , 2012.
STEPHANIE COOK, AttY. Reg. No. 0067101, Chief Prosecutor, City of Dayton, 335 W. Third Street, Room 372, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee
JOSHUA M. KIN, Atty. Reg. No. 0086965, 2700 Kettering Tower, Dayton, Ohio 45423 Attorney for Defendant-Appellant
BRANDI SIMS, 175 N. Marion Street, Dayton, Ohio 45417 Defendant-Appellant
DONOVAN, J. 2
{¶ 1} Appointed counsel for defendant-appellant Brandi Sims submitted an
appellate brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493
(1967), alleging that no arguably meritorious issues exist for appeal. After a thorough
review of the record, this Court agrees that the trial court’s proceedings were proper, and we
affirm the trial court’s judgment.
{¶ 2} Sims was originally charged with one count of menacing, in violation of
R.C. 2903.22, a misdemeanor of the fourth degree, and one count of telephone harassment,
in violation of R.C. 2917.21(A)(5), a misdemeanor of the first degree. After a bench trial
held on June 2, 2011, the trial court found Sims guilty of both counts. The trial court
ordered her to serve thirty days in jail for the charge of menacing, and 180 days in jail on the
charge of telephone harassment with 145 days suspended. The trial court further ordered
that the sentences be served concurrently. Lastly, the trial court sentenced Sims to two
years of supervised probation.
{¶ 3} Sims filed a timely notice of appeal with this Court on August 2, 2011. On
March 27, 2012, appointed counsel representing Sims submitted an Anders brief, alleging
that no arguably meritorious issues exist for appeal. By magistrate’s order of April 2, 2012,
we informed Sims that her counsel filed an Anders brief and informed her of the significance
of an Anders brief. We invited Sims to file a pro se brief assigning any error for our review
within sixty days of April 2, 2012. Sims has not filed anything with this Court. We also
note that the State has not filed a responsive brief.
{¶ 4} Although arguing that there are no meritorious claims to raise on Sims’
behalf, her attorney found three potential assignments of error; to wit: (1) whether the trial 3
court erred when it overruled Sims’ objection to the admission of the recorded voicemails;
(2) whether the trial court erred when it overruled Sims’ Crim. R. 29 motion made at the
close of the State’s case; and (3) whether the trial court’s guilty verdict is against the
manifest weight of the evidence. Upon review, we agree with appellate counsel that these
potential assignments of error have no arguable merit.
{¶ 5} With respect to the admission or exclusion of evidence, the trial court has
broad discretion and its decision in such matters will not be disturbed by a reviewing court
absent an abuse of discretion that has caused material prejudice. State v. Noling, 98 Ohio
St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88. As the Supreme Court of Ohio determined:
“Abuse of discretion” has been defined as an attitude that is
unreasonable, arbitrary or unconscionable. (Internal citation omitted). It is
to be expected that most instances of abuse of discretion will result in
decisions that are simply unreasonable, rather than decisions that are
unconscionable or arbitrary.
A decision is unreasonable if there is no sound reasoning process that
would support that decision. It is not enough that the reviewing court, were
it deciding the issue de novo, would not have found that reasoning process to
be persuasive, perhaps in view of countervailing reasoning processes that
would support a contrary result. AAAA Enterprises, Inc. v. River Place
Community Redevelopment, 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).
{¶ 6} On this record, we conclude that the trial court did not improperly admit the
voice recordings of telephone calls to the victim in which Sims participated. The State laid 4
a proper foundation for the admission of the tapes, and the victim identified one of the two
voices on the taped phone conversations as belonging to Sims.
{¶ 7} Appellate counsel also contends the trial court potentially erred when it
denied Sims’ Crim. R. 29 motion for acquittal made at the close of the State’s case. This
assignment is essentially an attack on the sufficiency of the evidence, and we will treat it as
such. In his final potential assignment, appellate counsel argues that Sims’ convictions for
menacing and telephone harassment were against the manifest weight of the evidence.
{¶ 8} “A challenge to the sufficiency of the evidence differs from a challenge to
the manifest weight of the evidence.” State v. McKnight, 107 Ohio St.3d 101,112,
2005-Ohio-6046, 837 N.E.2d 315. “In reviewing a claim of insufficient evidence, ‘[t]he
relevant inquiry is whether, after reviewing 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.’ (Internal citations omitted). A claim that a jury
verdict is against the manifest weight of the evidence involves a different test. ‘The court,
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 reversed and a new trial ordered. The discretionary power to grant a
new trial should be exercised only in the exceptional case in which the evidence weighs
heavily against the conviction.’” Id. (Internal citations omitted).
{¶ 9} The credibility of the witnesses and the weight to be given to their testimony
are matters for the trier of facts to resolve. State v. DeHass, 10 Ohio St.2d 230, 231, 227 5
N.E.2d 212 (1967). “Because the factfinder * * * has the opportunity to see and hear the
witnesses, the cautious exercise of the discretionary power of a court of appeals to find that a
judgment is against the manifest weight of the evidence requires that substantial deference
be extended to the factfinder’s determinations of credibility. The decision whether, and to
what extent, to credit the testimony of particular witnesses is within the peculiar competence
of the factfinder, who has seen and heard the witness.” State v. Lawson , 2d Dist.
Montgomery No. 16288, 1997 WL 476684 (Aug. 22, 1997).
{¶ 10} This court will not substitute its judgment for that of the trier of facts on the
issue of witness credibility unless it is patently apparent that the trier of fact lost its way in
arriving at its verdict. State v. Bradley, 2d Dist. Champaign No. 97-CA-03, 1997 WL
691510 (Oct. 24, 1997).
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[Cite as State v. Sims, 2012-Ohio-3106.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24763
v. : T.C. NO. 11CRB3428
BRANDI SIMS : (Criminal appeal from Municipal Court) Defendant-Appellant :
:
..........
OPINION
Rendered on the 6th day of July , 2012.
STEPHANIE COOK, AttY. Reg. No. 0067101, Chief Prosecutor, City of Dayton, 335 W. Third Street, Room 372, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee
JOSHUA M. KIN, Atty. Reg. No. 0086965, 2700 Kettering Tower, Dayton, Ohio 45423 Attorney for Defendant-Appellant
BRANDI SIMS, 175 N. Marion Street, Dayton, Ohio 45417 Defendant-Appellant
DONOVAN, J. 2
{¶ 1} Appointed counsel for defendant-appellant Brandi Sims submitted an
appellate brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493
(1967), alleging that no arguably meritorious issues exist for appeal. After a thorough
review of the record, this Court agrees that the trial court’s proceedings were proper, and we
affirm the trial court’s judgment.
{¶ 2} Sims was originally charged with one count of menacing, in violation of
R.C. 2903.22, a misdemeanor of the fourth degree, and one count of telephone harassment,
in violation of R.C. 2917.21(A)(5), a misdemeanor of the first degree. After a bench trial
held on June 2, 2011, the trial court found Sims guilty of both counts. The trial court
ordered her to serve thirty days in jail for the charge of menacing, and 180 days in jail on the
charge of telephone harassment with 145 days suspended. The trial court further ordered
that the sentences be served concurrently. Lastly, the trial court sentenced Sims to two
years of supervised probation.
{¶ 3} Sims filed a timely notice of appeal with this Court on August 2, 2011. On
March 27, 2012, appointed counsel representing Sims submitted an Anders brief, alleging
that no arguably meritorious issues exist for appeal. By magistrate’s order of April 2, 2012,
we informed Sims that her counsel filed an Anders brief and informed her of the significance
of an Anders brief. We invited Sims to file a pro se brief assigning any error for our review
within sixty days of April 2, 2012. Sims has not filed anything with this Court. We also
note that the State has not filed a responsive brief.
{¶ 4} Although arguing that there are no meritorious claims to raise on Sims’
behalf, her attorney found three potential assignments of error; to wit: (1) whether the trial 3
court erred when it overruled Sims’ objection to the admission of the recorded voicemails;
(2) whether the trial court erred when it overruled Sims’ Crim. R. 29 motion made at the
close of the State’s case; and (3) whether the trial court’s guilty verdict is against the
manifest weight of the evidence. Upon review, we agree with appellate counsel that these
potential assignments of error have no arguable merit.
{¶ 5} With respect to the admission or exclusion of evidence, the trial court has
broad discretion and its decision in such matters will not be disturbed by a reviewing court
absent an abuse of discretion that has caused material prejudice. State v. Noling, 98 Ohio
St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88. As the Supreme Court of Ohio determined:
“Abuse of discretion” has been defined as an attitude that is
unreasonable, arbitrary or unconscionable. (Internal citation omitted). It is
to be expected that most instances of abuse of discretion will result in
decisions that are simply unreasonable, rather than decisions that are
unconscionable or arbitrary.
A decision is unreasonable if there is no sound reasoning process that
would support that decision. It is not enough that the reviewing court, were
it deciding the issue de novo, would not have found that reasoning process to
be persuasive, perhaps in view of countervailing reasoning processes that
would support a contrary result. AAAA Enterprises, Inc. v. River Place
Community Redevelopment, 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).
{¶ 6} On this record, we conclude that the trial court did not improperly admit the
voice recordings of telephone calls to the victim in which Sims participated. The State laid 4
a proper foundation for the admission of the tapes, and the victim identified one of the two
voices on the taped phone conversations as belonging to Sims.
{¶ 7} Appellate counsel also contends the trial court potentially erred when it
denied Sims’ Crim. R. 29 motion for acquittal made at the close of the State’s case. This
assignment is essentially an attack on the sufficiency of the evidence, and we will treat it as
such. In his final potential assignment, appellate counsel argues that Sims’ convictions for
menacing and telephone harassment were against the manifest weight of the evidence.
{¶ 8} “A challenge to the sufficiency of the evidence differs from a challenge to
the manifest weight of the evidence.” State v. McKnight, 107 Ohio St.3d 101,112,
2005-Ohio-6046, 837 N.E.2d 315. “In reviewing a claim of insufficient evidence, ‘[t]he
relevant inquiry is whether, after reviewing 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.’ (Internal citations omitted). A claim that a jury
verdict is against the manifest weight of the evidence involves a different test. ‘The court,
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 reversed and a new trial ordered. The discretionary power to grant a
new trial should be exercised only in the exceptional case in which the evidence weighs
heavily against the conviction.’” Id. (Internal citations omitted).
{¶ 9} The credibility of the witnesses and the weight to be given to their testimony
are matters for the trier of facts to resolve. State v. DeHass, 10 Ohio St.2d 230, 231, 227 5
N.E.2d 212 (1967). “Because the factfinder * * * has the opportunity to see and hear the
witnesses, the cautious exercise of the discretionary power of a court of appeals to find that a
judgment is against the manifest weight of the evidence requires that substantial deference
be extended to the factfinder’s determinations of credibility. The decision whether, and to
what extent, to credit the testimony of particular witnesses is within the peculiar competence
of the factfinder, who has seen and heard the witness.” State v. Lawson , 2d Dist.
Montgomery No. 16288, 1997 WL 476684 (Aug. 22, 1997).
{¶ 10} This court will not substitute its judgment for that of the trier of facts on the
issue of witness credibility unless it is patently apparent that the trier of fact lost its way in
arriving at its verdict. State v. Bradley, 2d Dist. Champaign No. 97-CA-03, 1997 WL
691510 (Oct. 24, 1997).
{¶ 11} A review of the record convinces us that the State’s evidence, taken in its
entirety, was sufficient to sustain Sims’ convictions for menacing and telephone harassment.
R.C. 2903.22, defines menacing as “knowingly [causing] another to believe that the
offender will cause physical harm to the person or property of the other person, ***.” R.C.
2917.21(A)(5) provides that “no person shall knowingly make or cause to be made a
telecommunication, ***, if the caller *** (5) knowingly makes the communication to the
recipient of the telecommunication, to another person at the premises to which the
telecommunication is made, or to those premises, and the recipient or another person at
those premises previously has told the caller not to make a telecommunication to those
premises or to any persons at those premises.”
{¶ 12} Upon review, it clear that the State adduced sufficient evidence at trial 6
which established the following: (1) that Sims participated in two harassing voicemails to
the victim’s telephone; (2) that Sims called the victim numerous times after being told
repeatedly not to call anymore; (3) that Sims threatened to come to the victim’s house; (4)
that Sims had threatened the victim in the past; (4) that Sims did, in fact, drive by the
victim’s residence after threatening to do so; and (5) that the victim did not feel safe in her
house and subsequently left her home to hide from Sims. Accordingly, the trial court did
not err when it overruled Sims’ Crim. R. 29(A) motion for acquittal made at the close of the
State’s case as the evidence presented was sufficient to support her convictions.
{¶ 13} Lastly, Sims’ conviction is not against the manifest weight of the evidence.
The credibility of the witnesses and the weight to be given their testimony were matters for
the court to resolve. Although Sims testified at trial on her own behalf, her defense
consisted of allegations that the victim was simply lying and out to get her. The trial court
did not lose its way simply because it chose to believe the testimony of the victim, the
State’s only witness, who testified at length regarding Sims’ aggressive and hostile behavior
towards her. Having reviewed the entire record, we cannot clearly find that the evidence
weighs heavily against a conviction, or that a manifest miscarriage of justice has occurred.
{¶ 14} In the performance of our duty, under Anders v. California, to conduct an
independent review of the record, we have found no potential assignments of error having
arguable merit. We conclude that this appeal is wholly frivolous. Therefore, the judgment of
the trial court is Affirmed.
FAIN, J. and HALL, J., concur. 7
Copies mailed to:
Stephanie Cook Joshua M. Kin Brandi Sims Hon. Daniel G. Gehres