State v. Szloh

2013 Ohio 1073

Opinion

[Cite as State v. Szloh, 2013-Ohio-1073.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY

STATE OF OHIO : : Appellate Case No. 2012-CA-13 Plaintiff-Appellee : : Trial Court Case No. 11-CR-411 v. : : BRYAN M. SZLOH : (Criminal Appeal from : (Common Pleas Court) Defendant-Appellant : : ...........

OPINION

Rendered on the 22nd day of March, 2013.

...........

STEPHEN K. HALLER, Atty. Reg. #0009172, by NATHANIEL R. LUKEN, Atty. Reg. #0086864, Greene County Prosecutor’s Office, 61 Greene Street, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee

SEAN J. VALLONE, Atty. Reg. #0064053, 5 Irongate Park Drive, Suite A, Centerville, Ohio 45459 Attorney for Defendant-Appellant

BRYAN M. SZLOH, #656-859, North Central Correctional Institution, 670 Marion Williamsport Road, Post Office Box 1812, Marion, Ohio 43301 Defendant-Appellant, pro se

............. FAIN, P.J.

{¶ 1} Defendant-appellant Bryan Szloh was convicted of five counts of Violating a

Protection Order. The trial court sentenced Szloh to three years in prison. Szloh’s appellate

counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d

493 (1967), stating that after reviewing the record and the applicable law, he found no

potentially meritorious issues for appeal. Counsel set forth one potential assignment of error,

which counsel has concluded is frivolous: that the trial court erred by failing to advise Szloh

regarding post-release control prior to sentencing.

{¶ 2} By entry, we informed Szloh that his attorney had filed an Anders brief on

his behalf, and granted him 60 days from that date within which to file a pro se brief. Szloh’s

pro se brief was not timely filed, and was not properly filed with the Greene County Clerk of

Courts. Nevertheless, we accepted his brief as filed.

{¶ 3} Although Szloh fails to set forth any assignments of error, as required by

App.R. 16(A)(3), Szloh appears to be raising several arguments, which we have re-cast as

assignments of error.

I. The Protection Order

{¶ 4} In 2009, Josephine Miller (formerly Szloh) and her mother, Marilyn Miller,

were granted a protection order against Bryan Szloh. Of relevance hereto, the protection

order states:

Respondent [Szloh] shall not initiate or have any contact with the

protected persons named in this order, or their residences, businesses, places of

employment, schools, daycare centers, or childcare providers. Contact 3

includes but is not limited to telephone, fax, e-mail, voice mail, delivery

service, writings, or communication by any other means, in person or through

another person. Respondent may not violate this order even with the

permission of the protected person.

{¶ 5} Szloh contacted the two women a total of five times in June and July 2011.

Following an investigation, he was indicted on five counts of Violating a Protection Order, in

violation of R.C. 2919.27(A)(1). Each count was a felony of the fifth degree because Szloh

had been previously convicted of violating the same protection order.

II. The Course of Proceedings

{¶ 6} The trial court ordered Szloh to undergo a “Competency/Sanity Evaluation” at

the Forensic Psychiatry Center for Western Ohio in order to evaluate his competency to stand

trial. The evaluation, conducted by a licensed clinical psychologist, reveals that Szloh has a

college degree in Mechanical Engineering as well as a Master of Business Administration

degree. The psychologist notes that Szloh “adamantly disputes the legality of the divorce

because he never signed the proper paperwork,” and did not sign any document that would

finalize the divorce. Szloh further “expressed doubt that [his mother] is really deceased

because he finds it hard to believe that the jail staff would not have automatically released him

to let him attend her funeral.”1 The evaluating psychologist noted that “Mr. Szloh was polite

and generally cooperative, though he refused to provide certain information because he felt it

was irrelevant to the purpose of the evaluation or because he did not want to make statements

1 Szloh was incarcerated at the time of the evaluation, as well as at the time of his mother’s death. 4

that could possibly be used against him in court.”

{¶ 7} The evaluating psychologist opined, based upon testing and interviewing,

that Szloh is not “mentally retarded or severely mentally ill as defined in O.R.C. 5122.01.”

The psychologist further opined that Szloh has moderate depression and that he “has

significant difficulty accepting the failure of his marriage and the death of his mother, and he

generates unreasonable arguments to maintain his denial.” However, the psychologist stated

that Szloh is not delusional and that Szloh understands the legal proceedings and is capable of

assisting in his defense. Thus, the psychologist found Szloh competent to stand trial.

Following a hearing on the issue of competency, the trial court determined that Szloh was

competent to stand trial.

{¶ 8} A jury trial was conducted during which the following evidence was

presented.

{¶ 9} At trial, the parties stipulated that Szloh had been previously convicted of

violating the protection order. The State presented the testimony of Josephine Miller, who

testified that she had been married to Szloh, but that they were divorced in 2009 after nearly

ten years of marriage. She testified that she obtained the Protection Order through the Greene

County Common Pleas Court, Domestic Relations Division. Ms. Miller testified that her

mother, Marilyn Miller, is also a protected person under the terms of the Order. A certified

copy of the Order was admitted into evidence.

{¶ 10} Josephine Miller testified that on July 1, 2011, she received a voice mail

message on her cellular telephone while she was in Fairborn, Greene County, Ohio. She

testified that she recognized the voice as that of Mr. Szloh, and she recognized the number as 5

being associated with Szloh’s father. She testified that she reported the incident to the police.

A recording of the voice mail message was admitted into evidence.

{¶ 11} Marilyn Miller testified that Szloh is her former son-in-law. She testified that

she was involved with obtaining the protection order, and that she is a protected person under

the terms of the order. She testified that she received a telephone call at her home in

Beavercreek, Greene County, Ohio on June 30, 2011. She testified that she recognized the

caller’s voice as Szloh. A photograph of the caller identification display from her telephone

was introduced into evidence. Marilyn Miller also testified that Szloh called her twice on

July 1. He left a voice mail message with the second call. A photograph of the caller

identification display for these calls was entered into evidence as well as a recording of the

later voice mail message. Ms. Miller testified that Szloh contacted her by telephone on July

8. A photograph of her caller identification display was introduced into evidence regarding

this call. Finally, Szloh left a voice mail message on Ms. Miller’s telephone on July 10. A

recording of that call was introduced into evidence. Ms. Miller testified that she contacted

the Beavercreek Police Department regarding the contacts.

{¶ 12} The State introduced the testimony of three police officers who were

dispatched to investigate the subject calls. The testimony of the officers established that they

were responsible for taking the photographs of Marilyn Miller’s caller identification display as

well as recording the voice mails received by both women. Two of the officers testified that

they contacted Szloh and informed him that he was violating the protection order by

contacting the two women.

{¶ 13} Detective Holcomb of the Fairborn Police Department testified that he 6

conducted a follow-up investigation of the call to Josephine Miller. He testified that he made

a telephone call to the number listed as having called Ms. Miller. Holcomb testified that he

spoke to a male, who identified himself as Bryan Szloh, and that Holcomb identified himself

as a detective with the Fairborn Police Department. According to Holcomb, Szloh denied the

existence of the protection order, but admitted that he wrote a letter asking the trial court to

dismiss the order. Holcomb testified that he advised Szloh to do an on-line records search of

the “Greene County Common Pleas Court Records Section and verify that there was a

protection order.” Holcomb testified that Szloh then asked him to “s*ck my big, fat f*cking

d*ck,” and hung up.

{¶ 14} Szloh testified in his defense. He denied that he and Josephine Miller were

no longer married, stating that he did not “sign any type of divorce agreement.” Szloh also

testified that he received a copy of the protection order, and that he “glanced at it.” He

testified that “for the most part” he understood that the order prohibited contact with the

women, but that no one ever explained it to him. He also testified that part of the order

“looked like it was a little ambiguous.” Specifically, he identified the portions he believed to

be ambiguous, and testified that these portions caused him to believe he could have contact

with his ex-wife. Those portions state:

If you go near the petitioner or the alleged victim, even with the

petitioner’s or alleged victim’s consent, you may be arrested.

If you and the petitioner want to resume your relationship, you must ask

the Court to modify or terminate this protection order.

{¶ 15} When asked what in those provisions led him to believe he could resume 7

contact with his ex-wife, Szloh responded, “I thought that by me contacting her and seeing if

she wanted to resume the relationship, we both can go to Court and say hey, you know, we

disagree with this document and we need to talk in order to patch things up between us so we

can terminate this order.” Szloh admitted he contacted both women on the dates in question

stating that he had just been released from jail and “wanted to touch base with [Josephine], tell

her I was released and I was staying with my dad in Cleveland for the time being.”

{¶ 16} On cross-examination, Szloh admitted that he had a prior conviction for

violating the protection order, and that he was aware of the terms of the order at that time.

When asked about his confusion over the terms of the protection order, Szloh replied, “Well, I

guess I’m just confused that there is a protection order there since obviously [Josephine] is not

satisfied in our marriage, and I think the only way to rectify such a situation is to communicate

with your spouse, and if you can’t communicate with your spouse, I mean, I don’t understand

it. It makes no sense.”

{¶ 17} Following trial, Szloh was convicted on all counts. He waived his right to

have the trial court impose community control sanctions on the grounds that he did not agree

with the conditions of the sanctions and did not think he would follow them. Thus, pursuant

to agreement between Szloh and the State, the trial court sentenced him to twelve months on

each count. The sentences on counts one, two and three were ordered to be served

consecutively, while Counts Four and Five were to run concurrently with the others, for a total

incarceration of three years.

{¶ 18} From his conviction and sentence, Szloh appeals. 8

III. The Protection Order Was Valid

{¶ 19} Szloh’s First Assignment of Error provides as follows:

THE TRIAL COURT ERRED IN ENFORCING AN INVALID

PROTECTION ORDER.

{¶ 20} Szloh contends that the protection order is not valid because “there has been

no abuse between [himself] and Josephine and they are still legally married despite the fact

that the divorce process has been started.” He further contends that he and Josephine resided

in Montgomery County during the marriage, so that the Greene County courts did not have

jurisdiction to issue a protection order. He also stated that he does not believe that Josephine

does not reside in Greene County, because she has not filed a “formal separation stating that

she is living somewhere else.”

{¶ 21} We first note that there is nothing in this record to indicate that the protection

order is invalid due to lack of jurisdiction, or any other reason. Furthermore, this case does

not involve an appeal from the protection order, which was issued in 2009. Any complaints

Szloh has with regard to the validity of the order could, and should, have been raised in a

direct appeal from that order. Thus, this argument is barred by the doctrine of res judicata.

{¶ 22} To the extent that Szloh argues that he is entitled to ignore the protection

order, because he is merely attempting to reconcile with Josephine, we note that we have

previously held that “[a]n order of a court must be obeyed unless and until a court finds that it

is invalid or rescinds it.” Xenia v. Berry, 2d Dist. Greene No. 93-CA-39, 1994 WL 12494, *3

(Jan. 19, 1994). “The protective order was issued by the court, and neither the appellant nor *

* * the complaining witness, had any right under the law to waive it or ignore it, no matter 9

what the conduct of the parties may have been.” Id. Whether or not Szloh attempted to

waive the provisions of the order, it is clear that the Millers did not waive their right to the

protection of that order, and they were entitled to that protection.

{¶ 23} Szloh’s First Assignment of Error has no arguable merit.

IV. Evidence in the Record Supports the Conviction

{¶ 24} Szloh’s Second Assignment of Error is as follows:

THE CONVICTION IS NOT SUPPORTED BY THE EVIDENCE.

{¶ 25} Szloh contends that the State failed to prove that he acted with the requisite

intent to violate the protection order. In support, he claims that “the five phone calls that

were placed were not a reckless violation of the protection order [but, rather] the phone calls

were an attempt by the Appellant to repair his marriage to Josephine [Miller]. A letter was

written by the Appellant to the Greene County Domestic Relations Judge * * * in an attempt

to ask the court for another hearing on the protection order, but Appellant did not receive a

copy back. * * * The phone calls were made from Westlake OH to Beavercreek, OH; a

distance of about 210 miles or a 3 1/2 hour car drive separate the cities. Even if the phone

calls were of a threatening nature, which they were not, the Appellant did not pose an

immediate physical threat to Josephine or Marilyn.”

{¶ 26} “A sufficiency of the evidence argument disputes whether the State has

presented adequate evidence on each element of the offense to allow the case to go to the jury

or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery No. 22581,

2009–Ohio–525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 10

(1997). When reviewing whether the State has presented sufficient evidence to support a

conviction, the relevant inquiry is whether any rational finder of fact, after viewing the

evidence in a light most favorable to the State, could have found the essential elements of the

crime proven beyond a reasonable doubt. State v. Dennis, 79 Ohio St.3d 421, 430, 683

N.E.2d 1096 (1997). A guilty verdict will not be disturbed on appeal unless “reasonable minds

could not reach the conclusion reached by the trier-of-fact.” Id.

{¶ 27} Szloh was convicted of Violating a Protection Order. That offense is

codified at R.C. 2919.27(A)(1), which states, in relevant part, that “no person shall recklessly

violate the terms of any * * * protection order issued * * * pursuant to section 2919.26 or

3113.31 of the Revised Code.”

{¶ 28} “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.” R.C. 2901.22(C).

{¶ 29} The evidence establishes that Szloh contacted both women. It further

establishes that, despite his claims to the contrary, he was aware of the existence of the

protection order, as evidenced by his attempt to have the trial court set it aside. Also, his own

testimony establishes that he was aware of the terms of the order when he was convicted of a

previous violation.

{¶ 30} With regard to his claim that he was confused over the terms of the order, in

regard to his ability to contact the women, we note that the portions he claims are confusing

are part of the following passage:

Only the Court can change this order. The Petitioner/Alleged Victim 11

cannot give you legal permission to change this order. If you go near the

Petitioner/Alleged Victim, even with the Petitioner’s/Alleged Victim’s consent,

you may be arrested. If you and the Petitioner/Alleged Victim want to resume

your relationship you must ask the Court to modify or terminate this Protection

Order. Unless the Court modifies or terminates this order, you can be arrested

for violating this Protection Order. You act at your own risk if you

disregard this Warning. (Emphasis sic.)

{¶ 31} Szloh’s testimony on cross-examination establishes that he was not confused

by the actual requirements of the protection order. To the contrary, his testimony establishes

that he simply believes that he should not be bound by the terms of the order, because he

believes that he should be permitted to contact his ex-wife in order to reconcile with her.

{¶ 32} In sum, Szloh’s testimony establishes that he was aware of the prohibition

against contact, as well as the possible consequences of violating the order, and that despite

his knowledge, he still elected to contact the Millers. Thus, the jury could have found the

essential element of recklessness proven beyond a reasonable doubt. We conclude that the

evidence, when construed in a light most favorable to the State, was sufficient to support the

convictions.

{¶ 33} Szloh’s Second Assignment of Error has no arguable merit.

V. The Trial Court Had No Duty to Advise Szloh of Post-Release

Control Before Szloh Expressed his View that He Would Not Be Able

to Abide by Terms of Community Control Sanctions [Cite as State v. Szloh, 2013-Ohio-1073.] {¶ 34} The Third Assignment of Error, as raised by appellate counsel as a potential,

but meritless, assignment of error in the Anders brief, provides as follow:

THE TRIAL COURT ERRED WHEN IT FAILED TO ADVISE

SZLOH REGARDING POST-RELEASE CONTROL PRIOR TO IMPOSING

SENTENCE.

{¶ 35} Szloh contends that it was error for the trial court to fail to advise him about

the conditions of post-release control before the trial court imposed sentence.

{¶ 36} During the sentencing hearing, the trial court noted that Szloh would be

subject to mandatory community control pursuant to R.C. 2929.13, but that Szloh did not

believe that he could abide by the terms of the community control sanctions because he

believed them too harsh for the offense. Szloh acknowledged this fact on the record. The

State and Szloh also agreed to a three-year prison term as a substitute for community control,

given Szloh’s preemptive refusal to follow the terms for community control. The trial court

then accepted Szloh’s waiver of community control, and imposed the three-year agreed

sentence. Then the trial court proceeded to advise Szloh regarding post-release control

following the prison sentence.

{¶ 37} Appellate counsel, in the Anders brief, noted that the advisement “regarding

[post release control] should have come before accepting the waiver of [community control

sanctions] similar to a Court accepting a Plea. However, since Appellant had already been

found guilty by trial verdict and was proceeding with an agreed upon sentence, the colloquy

required before accepting a plea does not apply and counsel for Appellant does not believe

that the timing of the advisement of [post release control] was improper.” We agree.

{¶ 38} The Third Assignment of Error has no arguable merit. [Cite as State v. Szloh, 2013-Ohio-1073.]

VI. Conclusion

{¶ 39} Pursuant to our responsibilities under Anders, we have conducted an

independent review of the record. Based on that review, we agree with appointed appellate

counsel's assessment that there are no issues for appeal having arguable merit. Accordingly,

the judgment of the trial court is Affirmed.

.............

DONOVAN and WELBAUM, JJ., concur.

Copies mailed to:

Stephen K. Haller Nathaniel R. Luken Sean Vallone Bryan M. Szloh Hon. Stephen Wolaver