State v. Szloh

937 N.E.2d 168, 189 Ohio App. 3d 13
CourtOhio Court of Appeals
DecidedAugust 13, 2010
DocketNo. 2009-CA-56
StatusPublished
Cited by10 cases

This text of 937 N.E.2d 168 (State v. Szloh) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Szloh, 937 N.E.2d 168, 189 Ohio App. 3d 13 (Ohio Ct. App. 2010).

Opinion

Fain, Judge.

{¶ 1} Defendant-appellant, Bryan Szloh, appeals from his conviction and sentence for two counts of menacing by stalking. Szloh contends that the judgment of the trial court is against the manifest weight of the evidence. We conclude that the judgment is not against the manifest weight of the evidence — that this is not the rare case in which the finder of fact, in this case the trial judge, lost its way, resulting in a miscarriage of justice. Accordingly, the judgment of the trial court is affirmed.

I

{¶ 2} Szloh and his wife, Josephine Szloh, separated in August 2008, when Ms. Szloh moved into her mother’s residence. Divorce proceedings were initiated.

{¶ 3} During May through June 2009, Ms. Szloh and her mother, Marilyn Miller, made three separate police reports regarding Szloh’s appearances at the residence. Following one of those reports, police responded and found Szloh at the Miller residence. Szloh was given warnings to stay away from the property and to stop his attempts to contact Ms. Szloh. After the second report, the police again warned him to cease. Following the third report, Szloh was arrested and charged with two counts of menacing by stalking and one count of criminal trespass.

[15]*15{¶ 4} The matter proceeded to a bench trial on July 14, 2009. Szloh waived his right to counsel and defended himself at trial. The state presented the testimony of Beavercreek Police Officer Eric Grile, Ms. Szloh, and Ms. Miller. Szloh cross-examined both Ms. Miller and Ms. Szloh, but did not examine Grile. Szloh elected not to present any witnesses or evidence. Following the trial, Szloh was convicted on all counts. The court proceeded to sentencing, during which Szloh made the following statement:

{¶ 5} “If I could say a few words. I’ve been undergoing some problems these last few years. I’ve been unemployed two-and-a-half, almost three years. I’ve know [sic] Josephine Szloh for 15 years, been married to her for 10 of those. And I’ve known Marilyn for 15 years, as long as I’ve know [sic] Josephine. I don’t know what to say, other than she’s been separated from me for almost a year, since August, and I’ve not been able to talk to her. All I get is divorce papers in the mail at the residence. And I’m trying to work through things with her. I really don’t have anywhere else to go at this point as far as a place to live. And I’m asking leniency as best as you can, your Honor.”

{¶ 6} The trial court imposed a jail sentence of 180 days, with credit for three days served, for one of the menacing-by-stalking convictions. On the other menacing conviction, the trial court issued a consecutive 180-day jail sentence, which was suspended on the condition that Szloh serve a four-year term of supervised probation. The trial court fined Szloh $150 on each of those counts. With regard to the criminal-trespassing charge, the trial court sentenced Szloh to a 30-day jail sentence, which was suspended, as well as a $100 fine.

{¶ 7} From his conviction and sentence, Szloh appeals.

II

{¶ 8} Szloh’s sole assignment of error states as follows:

{¶ 9} “The judgment of the trial court is against the manifest weight of the evidence.”

{¶ 10} Szloh contends that his convictions for menacing by stalking are not supported by the weight of the evidence.1 A review of his argument in support of his assignment of error indicates that he also challenges the sufficiency of the evidence presented by the state. Specifically, Szloh claims that the state failed to prove that he caused Ms. Szloh or her mother to experience either fear of physical harm or mental distress.

[16]*16{¶ 11} A sufficiency-of-the-evidence argument challenges whether the state has presented adequate evidence on each element of the offense to allow the case to go to the jury or to sustain the verdict as a matter of law. State v. Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541. The proper test to apply to such an inquiry is the one set forth in paragraph two of the syllabus of State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492: “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.”

{¶ 12} In contrast, when reviewing a judgment under a manifest-weight standard of review, “ ‘[t]he 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 [factfinder] 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 evidence weighs heavily against the conviction.’ ” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541, quoting State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 485 N.E.2d 717.

{¶ 13} Szloh was convicted on two counts of menacing by stalking, in violation of R.C. 2903.211(A)(1), which provides as follows:

{¶ 14} “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.”

{¶ 15} “Pattern of conduct” is defined as “two or more actions or incidents closely related in time * * R.C. 2903.211(D)(1). “Mental distress” is defined as either of the following:

{¶ 16} “(a) Any mental illness or condition that involves some temporary substantial incapacity;

{¶ 17} “(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).

[17]*17{¶ 18} “Mental distress need not be incapacitating or debilitating * * * [and] expert testimony is not required to find mental distress.” Perry v. Joseph, Franklin App. Nos. 07AP-359, 07AP-360, and 07AP-361, 2008-0hio-1107, 2008 WL 660317, ¶ 8. “A trial court is permitted to rely on its knowledge and experience in determining whether mental distress has been caused.” Id.

{¶ 19} The culpable mental state of menacing by stalking is “knowingly,” which is defined in R.C. 2901.22(B) as follows: “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.”

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Cite This Page — Counsel Stack

Bluebook (online)
937 N.E.2d 168, 189 Ohio App. 3d 13, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-szloh-ohioctapp-2010.