~ IN THE SUPREME COURT OF OHIO

MICHELLE L. KRONENBERG, DEFENDANT-APPELLANT

C.A. Case No. 101403

<1 F-‘”’ -/"‘T- -1 W i .12. 1'1"; :2 5 STATE OF OHIO, ) CaseNo. T" " T" " "

PLAINTIFF-APPELLEE )

) On Appeal fiom the Cuyahoga vs. ) County Court of Appeals

) Eighth Appellate District )

)

MEMORANDUM IN SUPPORT OF IURISDICTION OF APPELLANT MICHELLE L. KRONENBERG

Michelle L. Kmnenberg W0 89298 Kerry Sowul (Prosecuting Attorney) Ohio Reformatory for Women (ORW) 1200 Ontario Street — 9”‘ floor 1479 Collins Ave Cleveland Ohio 44113 Marysville Ohio 43040

COUNSEL FOR APPELLEE, DEFENDANT ~APPELLANT, PRO SE STATE OF OHIO

CERTIFICATE OF SERVICE

I hereby certify that a copy of this Memorandum in Support of Jurisdiction was forwarded by regular U.S. Mail to Kerry Sowul, Prosecuting Attorney for Cuyahoga County at 1200 Ontario Street — 9“' floor, Cleveland Ohio 44113 on this 20”‘ day ofApril 2015.

4%., L L//?OlI>" Michelle L. Kronenberg, Defendant-Appellant, PRO SE

RECEIVED FTFPLE7}? APR 23 2015 M"

CLERK OF COURT SUPREME COURT OF OHIO

~

TABLE OF CONTENTS

EXPLANATION OF WHY THIS IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION ........................................................................... .. Page 1

STATEMENT OF THE CASE ................................................................................. .. Page 3

STATEMENT OF THE FACTS ............................................................................... .. Page 5

PROPOSITION OF LAW ........................................................................................ .. Page 7

APPENDIX (opinion and judgment entry from the Eighth District Court of Appeals ofMarch 19, 2015 case no. CA— 14 - 101403 (Cuyahoga County)

TABLE OF AUTHORITIES

State v. Kronenberg, 2011—Ohio-1069 .. Page 10 State v. Kxonenberg, 2012-Ohio-589 .. Page 10

State v. Kronenberg, 2015-Ohio-1020 Page 10

R.C. 2917.21(B) ........................................................... .. passim

R.C. 2917.21(A)(5) ...................................................... .. Page 4,10

RC. 2917.21 (A)(1)(2)(3)(4)(5) Page 7-8

R.C. 2913.01 (X) and (Y) ........... .. .. Page 8

RC. 2919.27(A)(2) ................................................................................................ .. Page 3,4,6

Black's Law Dictionary(ninth edition) definitions ................................................ .. Page 7,11

EXPLANATION OF WHY THIS IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION

The First Amendment of the United States Constitution is the foundation for all fieedom in

this country. The presumption of innocence is the foundation for the entire justice system in this

country. Ohio's Telecommunication Harassment statute R.C. 2917.2l(B) implicates both valuable

and important rights and therefore should be found to be unconstitutional and unenforceable.

R.C. 2917.2l(B) states that “No person shall make or cause to be made a telecommunication, or permit a telecommunication to be made from a telecommunications device under the person's control with purpose to abuse, threaten or harass another person”.

At first glance, it may seem like just another law to prevent abusive, threatening and harassing

telecommunications, that is until one realizes that it attempts to solely punish intent without a

corresponding criminal action. The actions of making, causing to be made or permitting a

telecommunication to be made from a telecommunications device remain the same regardless of

whether the telecommunication is lawful or not. It is the secondary action, the communication

itself or lack thereof, that is the relevant action, however, this statute does not require that any

consideration be given to the actual content of the communication. This makes it unclear as to

how one‘s purpose is determined, and more importantly, how it is determined beyond a

reasonable doubt. And even if one finds a telecommunication to be unwanted, unpleasant or

offensive, it does not mean that the person making the telecommunication had a specific purpose

to abuse, threaten or harass. Consequently, one can be convicted of this offense based on the

prosecutor's theory of the case alone without any supporting facts, evidence or testimony.

This statute is the equivalent of creating a law that states that it is a crime to enter a store with

purpose to shoplifi and then convicting someone of it while giving absolutely no consideration to

the fact that they paid for their purchases. In that scenario, even if the person would violate a

protection order by entering the store, it still does not mean that they had a purpose to shoplift

While there. The same holds true for R.C. 29l7.2l(B) because even if someone makes a

telecommunication that violates a protection order, it does not mean that they had a purpose to

abuse, threaten or harass or that the telecommunication was made with that specific purpose.

Furthermore, there are legitimate applications for each of the terms used in the statute as

follows: through a telecommunication an irate customer can verbally abuse a customer service

representative over a billing error or poor service, an employer can threaten to fire his employee

for poor attendance or not doing their job correctly, a mother can harass her daughter about when

she will get married or have a child. However, if in a moment of anger or frustration any of those

recipients would complain to the police, the state could charge the caller with R.C. 2917.2l(B)

which could lead to a conviction. There are no safeguards in place to prevent that from

occurring.

This statute encompasses all types of communication, from phone calls to internet postings,

from radio broadcasts to online editions of newspapers including editorial columns. It affects all

forms of speech: political, religious, charitable, commercial and symbolic. This is dangerous law

as anyone who communicates by telephonic or electronic means could be charged with this

statute simply based on a recipient's reaction and a prosecutor's assumptions. In this country that

should not be enough to convict one of a crime that could result in the loss of one's freedom.

STATEMENT OF THE CASE

On October 16, 2013 the Cuyahoga County Grand Jury indicted Michelle L. Kronenberg

(hereinafler “appellant”) on two counts in CR-579027. Count 1 charged appellant with Violating

a Protection Order (while committing a felony offense) in violation of R.C. 29l9.27(A)(2), a

felony of the third degree. Count 2 charged appellant with Telecommunications Harassment

(making a telecommunication with purpose to abuse, threaten or harass) in violation of R.C.

29l7.2l(B), a felony ofthe fifih degree.

On December 9, 2013 the trial court granted appellant's request to self-represent and the

appellant's Waiver of Counsel form was filed with the Cuyahoga County Clerk of Courts Ofiice

(TR.48-49). An attorney was appointed by the court as Stand-By Counsel for the appellant. (TR.

52). On this same day, the appellant signed a Jury Waiver fonn which was also filed with the

Cuyahoga County Clerk of Courts Office. (TR. 63).

On December 19, 2013 the appellant filed a Motion to Dismiss count 2 of the indictment, on

January 16, 2014 a hearing was held, and on January 23, 2014 the appellant's motion was denied.

(TR. 77). On March 7, 2014 the appellant filed a Motion to Dismiss count 1 of the indictment

and on April 17, 2014 the appellant's motion was denied. (TR. 109).

On April 17, 2014 a Bench Trial was commenced. At the close of the state's case, the

appellant made a Rule 29 Motion for Acquittal which was denied. (TR. 150). The trial court

found the appellant guilty of both counts of the indictment. (TR. 159). The court proceeded

immediately to sentencing where Count 1 and Count 2 were found to be allied otfenses with the

state electing to have the appellant sentenced on Count l of the indictment. (TR. 168). The

appellant received a sentence of 36 months to be served at the Ohio Reforrnatory for Women.

(TR. 170)

On May 16, 2014 the appellant filed a Notice of Appeal with the Eighth District Court of

Appeals and on March 19, 2015 the appellate court affirrned the judgment of the trial court.

On April 2, 2015 the appellant filed a Pro Se Motion for Reconsideration with the Eighth

District Court of Appeals ~ at the time this memorandum is being written, it is still pending.

(On October 2, 2013 the Cuyahoga County Grand Jury indicted Michelle L. Kronenberg on

two counts in CR-578701. Count 1 charged appellant with Violating a Protection Order in

violation of R.C. 29l9.27(A)(2), a felony of the fifih degree. Count 2 charged appellant with

Telecommunications Harassment (making a telecommunication afier being told not to call) in

violation of R.C. 29l7.2l(A)(5), a felony of the fifih degree. On January 24, 2014 the state filed

for a Joinder of the two indictments (CR-578701 and CR-579027). On April 17, 2014 the trial

court granted the appellant's Rule 29 Motion for Acquittal as to both counts in CR~578701.)

STATEMENT OF THE FACTS

P.O. Mathew Mikolay, a police officer with the city of Mayfield Heights, responded to a

complaint of Mrs. LaMarca. (TR.l15-117). Mrs. LaMarca informed the officer that they (Mr.

And Mrs. LaMarca) had a protection order against the appellant and the appellant violated that

order by calling Mr. LaMarca's cellphone on the morning of September 26, 2013. (TR. 116-118).

Officer Mikolay obtained the phone number that the appellant had called from and was able to

determine that it was fiom Giant Eagle in South Euclid. (TR. 119). South Euclid police contacted Mayfleld Heights police and informed them that the appellant was at the McDonald's in South

Euclid and Officer Mikolay went to the McDonald's and took custody of the appellant. (TR.

120). The appellant admitted to calling Mr. LaMarca on his cellphone, leaving a message asking

him for help. (TR. 121).

James LaMarca testified that he has known the appellant since 1989 when the appellant did

telemarketing for him at DiCicco Funeral Home. (TR. 124). After eight months the telemarketing

program was discontinued, the appellant was let go, and the two remained acquaintances and

friends. (TR. 125). In the early 2000's Mr. LaMarca asked the appellant to stop calling him

because the calls became disruptive in his life. (TR. 126). He contacted the police when the

appellant continued to call, there were a few cases in the Lyndhurst and Cuyahoga County Courts

regarding this and in 2010 he sought a civil protection order. (TR. 127). On March 15, 2010 a

hearing was held on the protection order and it was granted for a period of five years. (TR. 130).

The appellant had contacted Mr. LaMarca in September 2010 and was charged and convicted

of Violating a Protection Order (while committing a felony offense) in violation of RC.

29l9.27(A)(2), a felony of the third degree and Telecommunications Harassment (making a

telecommunication with purpose to abuse, threaten or harass) in violation of R.C. 2917.21(B), a

felony of the fifth degree. (TR. 130-131). The sentences were run concurrent, resulting in the

appellant receiving a three year sentence for which she was released from prison on September

21, 2013. (TR. 1301-131). A few days later, on September 26, 2013 the appellant lefi a message on Mr. LaMarca's voicemail which he identified in court. (TR. 132-133)

On cross—examination Mr. LaMarca testified that in this matter he was only contacted once

and that one time was a message left on his cellphone‘s voicemail. (TR. 135). He stated that prior

to that voicemail, the last time the appellant contacted him was in September 2010. (TR. 136).

On re-direct examination Mr. LaMarca testified that he viewed the call he received from

appellant on September 26, 2013 as a cry for help. (TR. 138). He stated that appellant's message

asked him to provide her with cigarettes, pop and a ride to her father's house and that in the past

he would bring her cigarettes. (TR. 140). On re-cross examination Mr. LaMarca acknowledged

that the purpose of appellant's phone call was to specifically ask him for those three items

(cigarettes, pop and a ride to her father's house). (TR. 141).

PROPOSITION OF LAW

Ohio Telecommunications Harassment statute R.C. Z917.2l(B) is both unconstitutionally

vague and unconstitutionally overbroad on its face and as applied to this defendant.

There is no statutory definition for “harass” in Ohio law, although the legal definition of

“harassment” in Black's Law Dictionary (ninth edition) requires that the words, conduct or action

cannot serve a legitimate purpose for it to be considered harassment — a limitation necessary to

safeguard constitutionally protected speech and conduct. However, R.C. 2917.21(B) does not

contain that same limitation which would help to prevent constitutionally protected speech and

conduct from being swept into its reach.

R.C. 291'/.2l(B) states that “No person shall make or cause to be made a telecommunication, or permit a telecommunication to be made from a telecommunications device under the person's control with purpose to abuse, threaten or harass another person”.

The statute contains no criteria to determine the purpose of the individual or the

telecommunication, failing to differentiate between the two and it does not use the word

“purposely” which would go towards mental culpability. It also fails to specify a standard of

conduct as to what type of words, conduct or action would specifically constitute a purpose to

abuse, threaten or harass another person.

When viewing R.C. 2917.21 in its entirety: (A)(l) requires the omission of specific content,

(A)(2) requires sexually explicit content, (A)(3) and (A)(4) require threatening content, and

(A)(5) requires specific content to have occurred in a prior telecommunication. (B) becomes the

7

catch-all for anything that does not specifically fit into the above categories, allowing for

substantial overbreadth to occur as there are no safeguards in place to prevent constitutionally

protected speech and conduct from being swept into its reach. It is also clear that (B) was not

intended to be an enhancement penalty for (A)(1) through (A)(5) as it is charged as a stand-alone

violation of R.C. 291721 in this case.

R.C. 2913.0l(X) defines "Telecommunication” as “the origination, emission, dissemination, transmission, or reception of data, images, signals, sounds, or other intelligence or equivalence of intelligence of any nature over any communications system by any method, including, but not limited to, a fiber optic, electronic, magnetic, optical, digital, or analog method.”

R.C. 2913.0l(Y) defines "Telecommunications Device" as “any instrument, equipment, machine, or other device that facilitates telecommunication, including, but not limited to, a computer, computer network, computer chip, computer circuit, scanner, telephone, cellular telephone, pager, personal communications device, transponder, receiver, radio, modem, or device that enables the use of a modem.”

Included in this are both the Freedom of Speech and Freedom of the Press as R.C. 29l7.21(B)

is inclusive of phone calls, voicemails, text messages, twitter posts, emails, faxes, blogs, images,

photos, websites, facebook posts, ebooks, radio and television broadcasts, online newspapers,

magazines and publications, and even speech over a public address system. It encompasses all

forms of speech: political, religious, charitable, commercial and even symbolic speech and it

affects nearly all forms of communication, both written and spoken, private and public, both

active and passive, sent and received.

Furthermore, the act of making, causing to be made or permitting a telecommunication to be

made from a telecommunications device remains the same regardless of whether the

telecommunication is lawful or not. Therefore, it is the secondary action, the communication

itself or lack thereof, that becomes the relevant action. The content of the communication cannot

simply be disregarded as it may amount to exculpatory evidence.

When it comes to matters of communication, it is the words that are written or spoken and

maybe even punctuation or tone of voice that are most important, not the method used for

writing or speaking those words. A love letter scribbled on a dirty scrap of paper can still be romantic, a hurtful letter perfectly typed on beautiful stationery can still be very ugly, good news

through the static of a bad connection can still be wonderful and sad news remains just that

regardless of how one is told of it.

It is clear that for the most part, purpose and content of the communication go hand in hand,

unless one has a change of heart or mind once the telecommunication is already made. For

example: one can contact someone with purpose to abuse, threaten or harass and yet not act on it

within the communication that follows. Or one can contact someone with a totally legitimate

purpose but, for whatever reason, the communication deteriorates and becomes abusive,

threatening or harassing.

However, there are those times when one contacts someone with a specific purpose, such as

asking for advice, a recipe or directions or even to discuss, complain or confide about something.

While it is entirely possible for one to view that purpose as nothing more than an excuse to have

contacted the person, in reality it simply sets the tone and topic for the conversation that follows.

One of the many problems with RC. 2917.2l(B) is that one can genuinely contact someone with

a completely legitimate purpose, where the communication reflects exactly that, only to have it

misconstrued as nothing more than an excuse to harass that never existed in the first place.

That exact situation happened to this appellant in State v. Kranenberg, 2012—Ohia-589 where

the content of the two voicemails left twelve hours apart were completely disregarded based on

the prosecutor's assertion that the calls were just an excuse to harass even though the content of

the calls reflected a genuine request for help which was also the purpose for calling — and yet the

appellant was found guilty of R.C. 2917.21(B). However in State v. Kranenberg, 2011-0hio-

1069 where the content of the eighteen voicemails lefi within four and a half hours was

considered, the appellant was found not guilty of R.C. 29l7.2l(B) — although in that case she

was found guilty of violating R.C. 29l7.2l(A)(5) for making those calls after allegedly being

told not to call. Both cases involved the same alleged victim and all speech involved was

constitutionally protected.

In the instant case, State v. Kranenberg, 2015-Ohio-1020, at trial it became clear that both the

appellant and the alleged victim agreed on the purpose of both the telecommunication and the

individual, that it was to ask for assistance, and where the content of the communication

reflected that specific purpose as well. The extreme overbreadth and vagueness of this statute

allows for convictions based solely on the state's assumptions and innuendo rather than on the

actual facts, evidence and testimony presented at trial. This serves to also implicate the

presumption of innocence as this statute allows for one to be convicted of this offense based on

mere speculation

l0

of possible intent and motive without more, raising additional due process concerns.

Black's Law Dictionary (ninth edition) defines the Vagueness Doctrine as “the doctrine — based on the Due Process Clause — requiring that a statute state explicitly and definitely what acts are prohibited or restricted so as to preclude arbitrary enforcement”.

Black's Law Dictionary (ninth edition) defines the Overbreadth Doctrine as “the doctrine holding that if a statute is so broadly written that it deters free expression, then it can be struck down on its face because of its chilling effect — even if it also prohibits acts that may legitimately be forbidden".

The issues and arguments presented here are unique and this is truly a case of first impression

for this court. The appellant respectfully requests that this court find R.C. 29l7.2l(B) both

unconstitutionally vague and unconstitutionally overbroad on its face and as applied to this

appellant.

Respectfully Submitted,

%_/ Z 74/2,.‘//aolnr Michelle L. Kronenberg W0 89298 Ohio Reformatory for Women (ORW) 1479 Collins Ave Marysville Ohio 43040

DEFENDANT — APPELLANT, PRO SE

11

IN THE SUPREME COURT OF OHIO

STATE OF OHIO, Case No. PLAINTIFF-APPELLEE

On Appeal from the Cuyahoga vs. County Court of Appeals

Eighth Appellate District MICHELLE L. KRONENBERG, C.A. Case No. 101403

DEF ENDANT-APPELLANT

wwwvvwv

APPENDIX TO

MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT MICHELLE L. KRONENBERG

Giuurt of Qppeals of <£BI3in EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 101403

STATE OF OHIO PLAINTIFF-APPELLEE

VS.

MICHELLE L. KRONENBERG DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

>

»

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR—13-579027-A

BEFORE: Boyle, J., Keough, P.J., and E.A. Gallagher, J. RELEASED AND JOURNALIZED: March 19, 2015

~~ ~ ~

NOTICE

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FOR

ALL

PAFC‘a'\ES'Cbu

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ATTORNEY FOR APPELLANT Britta M. Barthol P.O. Box 218 Northfield, Ohio 44067

ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor BY: Kerry A. Sowul Assistant County Prosecutor 9th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113

MARY J. BOYLE, J.: {1[1} Defendant-appellant, Michelle Kronenberg, appeals her conviction

for violating a protection order and telecommunications harassment. Finding

no merit to the appeal, we affirm.

Procedural History and Facts

{1[2} In October 2013, Kronenberg was indicted on two counts: (1)

violating a protection order in violation of R.C. 2919.27(A), a third-degree felony,

and (2) telecommunications harassment in violation of R.C. 2917.21(B), a felony

of the fifth degree.‘ Kronenberg pleaded not guilty to the charges.

{HI3} Prior to trial, the court referred Kronenberg to the court psychiatric

clinic for a competency evaluation to stand trial and to waive her right to ‘

counsel. Based on the inquiry by the trial court and the court psychiatric clinic

reports provided, the trial court allowed Kronenberg to invoke her right to self-

representation, and the matter proceeded to a bench trial.

{1[4} The state presented two witnesses at trial:'Mayfield Heights Police

Officer Matthew Mikolay, and the victim, ames LaMarca_. Through the

witnesses’ testimony, the state presented the following evidence. .

I

‘ Kronenberg was also indicted in a separate case —_ Cuyahoga C.P. No. CR-13- 578701 — for violating" a protection order in violation of R.C. 2919.27(A)(2) and j-telecommunications harassment in violation of R.C. 2917 .21(A)(5). That case was tried with the underlying case but dismissed after the close of the state’s evidence. It is not a part of the case on appeal.

H15} LaMarca, a funeral home director for DiCicco Funeral Homes in Mayfield Heights, first met Kronenberg around 1989 when she worked for the

funeral_home as a telemarketer. Kronenberg worked at the funeral home for

approximately one year, during which time the two became friends. According

to LaMarca, he remained friends with Kronenberg for approximately ten years

after she no longer worked at the fimeral home. In 2000, however, LaMarca

asked Kronenberg to stop’ calling him because the calls had become very

disruptive in his life. LaMarca explained that Kronenberg sometimes would call

“S0 to 100 times a day,” calling his home phone number, his cell phone, and his

work number. LslVIarca changed his cell phone number as a result of the calls ‘

but Kronenberg somehow learned of his new cell number. LaMarca testified 1

that Kronenberg not only disrupted his life but also scared his family, which

resulted in LaMarca contacting the authorities and ultimately seeking a civil

protection order against Kronenberg in March 2010.

H6} LaMarca further testified that Kronenberg’s refusal to stop

contacting hi.m, despite being asked “many times” and ordered to do so, resulted

in a few court cases in Lyndhurst and cases filed “down here.” LaMarca

specifically testified that Kronenberg had previously V been convicted of

telecommunications harassment in Judge Sutula’s courtroom in 2011 and that

she received a three-year prison sentence. He further indicated that there were\

A

other earlier cases prosecuted in common pleas court against Kronenberg in

2008 and 2009.

H7} As to the facts giving rise to the instant case, LaMarca testified that Kronenberg called his cell phone approximately five days after she was released

from prison and left a voicemail, asking LaMarca for cigarettes, pop, and a ride

to her father’s house. The state offered the recorded voicemajl message into

evidence. LaMarca testified that he has received calls like this from Kronenberg

in the past, prompting LalVlarca to contact the police ‘and resulting in criminal

prosecution against Kronenberg. LaMarca further explained the anxiety and

terror associated with these calls and that he told Kronenberg at the last trial

that he “didn't want anything to do with her.”

HIS} Officer Mikolay testified that he responded to the complaint

concerning Kronenberg violating a protective order. Officer Mikolay confirmed

that a protective order was in place, contacted Kronenberg’ s parole officer, and

then ultimately took Kronenberg into custody! According to Officer Mikolay,

Kronenberg admitted to calling LaMarca, leaving him a message, and asking for

help. ‘

‘

M19} The trial court ultimately found Kronenberg guilty of both counts of

the indictment. The court merged the two counts as allied offenses, and the

state elected to proceed on Count 1. The trial court imposed the maximum A

sentence of three years in prison.

{1I10} Kronenberg now appeals, raising the following three assignments

of error: ’

I. The evidence was insufficient as a matter of law to support a finding beyond a reasonable doubt that appellant was guilty of the telecommunications harassment and violating a protection order.

II. The trial court erred by imposing the maximum sentence and failing to make the required findings under R.C. 2929.11 and R.C. 2929.12.

'

III. The trial court erred when it failed to grant the appellant’s motion to dismiss count two of the indictment.

Sufficiengz of the Evidence

{1[11} In her first assignment of error, Kronenberg argues that the state

failed to present sufficient evidence to convict her of telecommunication

harassment and violating a protection order. We disagree.

H112} When an appellate court reviews a record upon a sufficiency

challenge, ‘“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.”’ State v.

Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235', 8'18 N.E.2d 229: 1IV77, quoting State

v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the

syllabus.

A. Telecommunications Harassment

{1I13} Kronenberg was convicted of telecommunications harassment in

violation of R.C. 2917 .21(B), which states the following:

/“\

No person shall make or cause to be made a telecommunication, or permit a telecommunication to be made from a telecommunications device under the person's control, with purpose to abuse, threaten, or harass another person.

{1} 14} Kronenberg argues that the state failed to produce sufficient

evidence that she placed a telephone call with the “purpose to abuse, threaten,

or harass” LaMarca. According to Kronenberg, the state only produced evidence

that she called LaMarca a single time for the purpose of asking for help. She

"argues that the mere fact that LaMarca felt harassed by the telephone call is

irrelevant for satisfying the purpose element of the offense.

{H15} Initially, we note that R.C. 2917.21(B) does not require more than

a single phone call in order to constitute telephone harassment. State v. Stanley,

10th Dist. Franklin No. 06AP-65, 2006-Ohio-4632, 1[ 13. The critical inquiry of

telecommunications harassment is not whether the person who received the call

was in fact threatened, harassed or annoyed by the call, but rather whether the'

purpose of the person who made the call was to abuse, threaten or harass the

person called. State v. Bonifas, 91 Ohio App.3d 208, 211-212, 632 N.E.2d 531 (3d

Dist.1993). In the absence of direct evidence, a defendants intent to threaten,

harass, or annoy, however, may be’ established by the facts and circumstances

surrounding the call. State v. Pariscoff, 10th Dist. Franklin No. O9AP-848, 2010-

Ohio-2070, 1[ 15, citing State v. Lucas, 7th Dist. Belmont No. 05BE10, 2005-Ohio-

:, 6786,1[ 15.

{1[16} Under R.C. 2901.22(A), a person acts “purposely” when “it is his

specific intention to cause a certain result, or, when the gist of the offense is a

prohibition against conduct of a certain nature, regardless of what the offender

intends to accomplish thereby, it is his specific intention to engage in conduct of

that nature.” Further, “[h]a.rass has been defined in casellaw as ‘to persistently

torment the recipient of the telephone call.”’ Stanley at 1[ 14, quoting State 1).

Dennis, 3d Dist. Allen No. 1-97-42, 1997 Ohio App. LEXIS 5049 (Oct. 30, 1997).

{1I17} Here, we find that the state produced sufficient evidence that

Kronenberg’ s purpose of calling LaMarca was to harass him. The record reveals

that Kronenberg has a history of ignoring the protection order and contacting '

LalVIarca, despite knowing the torment that her calls inflict upon him and his I

family. Kronenberg couching the call as a request for help does not change the

true nature of the call — an attempt to renew a relationship that had been terminated years earlier. In this case, Kronenberg contacted LaMarca almost

immediately after being released from prison for similar unlawful conduct.

Given these circumstances, any rational trier of fact could have found that

Kronenberg acted with the requisite purpose to commit telecommunications

harassment. See State v. Kronenberg, 8th Dist. Cuyahoga No. 96797, 2012—Ohio-

589 (finding that state presented sufficient evidence to prove the requisite

purpose to support a conviction of telecommunications harassment under nearly

"identical facts involving same victim and same defendant).

{1I18} Kronenberg next argues that her felony conviction of

telecommunications harassment required proof that “this was a subsequent

offense under this section.” She argues that the state failed to submit a certified

journal entry of any prior conviction for telecommunications harassment and

therefore failed to meet its burden of proof. Kronenberg, however, fails to offer

any authority in support of her claim that the state must prove the prior offense

with a “certified journal entry.”

H119} Through LaMarca’s testimony, the state offered evidence that

Kronenberg has previously been convicted of telecommunications harassment.

We find that this evidence is sufficient to establish that the underlying case is a “subsequent offense” of telecommunications harassment.

B. Violating a Protection Order

HI20} Kronenberg was also convicted of violating a protection order under

R.C. 2919.27(A)(2) "while committing a felony offense,” which elevated the

offense to a third-degree felony. See R.C. 2921.27(B)(4). -Relying on her earlier

argument, Kronenberg contends that the state’s failure to present a certified

copy of a prior conviction precluded a felony conviction of telecommunications.

harassment. But having found that this argument lacks merit, we likewise

reject this claim.

{1I21} This first assignment of error is overruled.

Maximum Sentence

{1I 22} In her second assignment of error, Kronenberg argues that the trial

court erred in imposing a three-year maximum sentence without first making

the required findings under R.C. 2929.11 and 2929.12. Specifically, Kronenberg

argues that the trial court failed to consider the purposes and principles of

sentencing under R.C. 2929.11 or the seriousness and recidivism factors listed

in R.C. 2929.12.

HI23} R.C. 2953.08(G)(2) states that when reviewing prison sentences,

“[t]he appellate court's standard for review is not whether the sentencing court

abused its discretion.” Instead, the statute permits the appellate court to

“increase, reduce, or otherwise modify a sentence * * * or may vacate the

sentence and remand the matter to the sentencing court for resentencing” if we

determine that “the record clearly and convincingly * * * does not support the

sentencing court's findings under [various provisions]; [or] [t]hat the sentence

is otherwise contrary to law.” State v. Bement, 8th Dist. Cuyahoga No. 99914,

2013-Ohio-5437, 1] 13, quoting R.C. 2953.08(i})i2)..

M24} The trial court has the full discretion to impose any term of

imprisonment within the statutory range, but it must consider the sentencing

purposes in RC. 2929.11 and the guidelines contained in R.C. 2929.12. State v.

“Holmes, 8th Dist. Cuyahoga No. 99783, 2014-Ohio-603, 11 8.

{{[25} R.C. 2929.11(A) provides that the “overriding purposes of felony

sentencing are to protect the public from future crime by the offender and others

and to punish the offender using the minimum sanctions that the court

determines accomplish those purposes.” R.C. 2929.11(B) requires that, in

addition to achieving these goals, a sentence must be “commensurate with and

not demeaning to the seriousness of the offencler’s conduct and its impact upon

the victim .3‘

{1[26} R.C. 2929.12 provides a nonexhaustive list of factors the court must

consider in determining the relative seriousness of the underlying crime and the

likelihood that the defendant will commit another offense in the future. State

U. Wright, 8th Dist. Cuyahoga No. 100283, 2014-Ohio-3321, 1} 9, citing State v.

Townsend, 8th Dist. Cuyahoga No. 99896, 2014-Ohio-924, 1] 11. The factors

include: (1) the physical, psychological, and economic harm suffered by the

victim, '(2) the defendant’s prior criminal record, (3) whether the defendant

shows any remorse, and (4) any other relevant factors‘. R.C. 2929.12(B) and (D).

11127} Contrary to Kronenberg’ s assertion, the trial court was ‘not required

to-make any factual findings under R.C. 2929.11 or 2929.12 before imposing a

maximum sentence. Bement, 8th Dist. Cuyahoga No. 99914, 2013-Ohio-5437,

1[ 17. Indeed, “[a]lthough there is a mandatory duty to ‘consider’ the statutory

factors, the trial court is not required to explain its analysis of those factors in B a given case.” Wright at 1} 10. And this court has consistently recognized that

a trial court’s statement in the journal entry that it considered the required

statutory factors, without more, is sufficient to fulfill its obligations under the

sentencing statutes. Id., citing State v. Kamleh, 8th Dist. Cuyahoga No. 97092,

2012-Ohio-2061, 1[ 61.

{1I28} The trial court’s journal entry indicates that the court considered

“all required factors of the law” and concluded that prison is consistent with the

purpose of R.C. 2929.11. Further, although not required, the trial court even

stated on the record its reasoning for imposing the maximum sentence, noting

the following:

I have imposed the maximum sentence that the court could impose in this matter based on all of the facts and circumstances surrounding the case, as well as and mostly including the numerous convictions and repeated convictions for the same offense and the same victim.

Also, for the fact that she has committed this crime while on post-release control from her other case that she had served a three-

’ year sentence on, the court does feel that a maximum sentence is appropriate in this matter.

H129} Thus, given that the trial court properly considered the purposes

and principles of felony sentencing set forth ii1‘R.C. 2929.11 and the relevant

seriousness and recidivism factors listed in R.C. 2929.12, we find no merit to

Kronenberg’s second assignment of error and overrule it.

Constitutionali of R.C. 2917.21

{1[30} In her final assignment of error, Kronenberg argues that R.C.

2917.21(B) is unconstitutionally vague and over broad and, therefore, the trial

court should have granted her motion to dismiss Count 2 of the indictment. We disagree.

{1l31} Initially, we note that there is a strong presumption in favor of the

constitutionality of statutes. State v. Anderson, 57 Ohio St.3d 168, 171, 566

N.E.2d 1224 (1991). The party challenging a statute must prove that it is

unconstitutional beyond a reasonable doubt. Id.

Vagueness

{1} 32} In order to survive a void—for-vagueness challenge, “the statute must

be written so that a person of common intelligence is able to determine what conduct is prohibited, and secondly, the statute must provide sufficient

standards to prevent arbitrary or discriminatory enforcement.” State v.

Baumgartner, 8th Dist. Cuyahoga Nos. 89190, 91027, and 91028, 2009-Ohio-624,

1[ 42, citing State U. Williams, 88 Ohio St.3d 513, 728 N.E.2d 570 (2000).

M33} The Ohio Supreme Court has explained the rationale for the “void

for vagueness” doctrine as follows:

Three “values” rationales are advanced to support the “void for vagueness” doctrine. * * * These values are first, to provide fair warning to the ordinary citizen so behavior may comport with the dictates of the statute; second,‘ to preclude arbitrary, capricious and generally discriminatory enforcement by officials given too much authority and too few constraints; and third, to ensure that fundamental constitutionally protected freedoms are not unreasonably impinged or inhibited.

(‘State v. Tanner, 14 Ohio St.3d 1, 3, 472 N.E.2d 689 (1984).

{1T34} Kronenberg argues that R.C. 2917.21(B) is unconstitutionally vague

because “the statute does not define the elements of abuse, threaten or harass.”

At least one other Ohio court has addressed and rejected this exact argument,

stating the following:

The fact that the statute does not place legal definitions on each of these terms demonstrates that the General Assembly intended to prohibit conduct that is easily definable by the common everyday meaning of these words. A person of ordinary intelligence would know what type of conduct is prohibited. A person is prohibited from making a telephone call with the purpose to mistreat another person, to express a threat to another person, * * *

or to persistently torment the recipient of the telephone call.

Although R.C. 29 17.2 1 (B) implicates a First Amendment freedom by regulating speech, the statute is not vague for not establishing a standard of conduct.

' State 1;. Dennis, 3d Dist. Allen No. 1-97-42, 1997 Ohio App. LEXIS 5049, *5-6 ‘

(Oct. 30, 1997).“

N35} The Dennis court upheld the statute as constitutional, recognizing

that the statute specifically identifies types of similar behavior that will not be

tolerated from persons using the telephone, namely, that a person cannot make

a telephone call with the purpose of being abusive, threatening, or harassing to

another person. We find their reasoning persuasive and likewise hold that the

statute is not unconstitutionally vague.

2 R.C. 2917.21(B) has been amended since the Dennis decision. The current version does not include the additional purpose to “annoy.” Despite the amendment, we find the Dennis reasoning equally applies to the current version of the statute because it still includes “with the purpose to abuse, threaten,'or harass another person.”

Overbreadth

{1]36} A statute is over broad if within its reach it prohibits

constitutionally protected First Amendment conduct. Baumgartner, 8th Dist.

Cuyahoga Nos. 89190, 91027, and 91028, 2009-Ohio-624,‘ 1] 43, citing Akron v.

Rowland, 67 Ohio St.3d 374, 381, 618 N.E.2d 138 (1993).

{1]37} When performing an overbreadth analysis, courts first consider if the statute regulates speech content or speech-related conduct. State U. Kinstle,

3d Dist. Allen No. 1-11-45, 2012-Ohio-5952, 1] 21. Ha statute regulates speech content, it must be narrowly tailored to further a compelling state interest. Id.,

citing Broadrick U. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830

(1973). But “where conduct and not merely speech is involved, * * * the

overbreadth of a statute must not only be real, but substantial as well, judged

in relation to the statute’s plainly legitimate sweep.”’ Id., quoting Broadrick at

615. Since R.C. 2917.21 is not a content-based restriction, Kronenberg has the

burden of showing that the statute “reaches a significant amount of protected

speech.” State v. Snyder, 155 Ohio App.3d 453, 2003'-Ohio-6399, 801 N.E.2d 876,

1] 18 (3d Dist.). _

’

{1]38} Kronenberg argues that the “statute prohibits constitutionally

protected conduct that would otherwise be legal.” She contends that the statute

punishes a simple call for help and her right to free speech. We find her1 ii

argument unpersuasive. The statute operates to prohibit people from purposely

making abusive, threatening, or harassing telecommunications; it does not

restrict protected speech. See generally State U. Gibbs, 134 Ohio App.3d 247, 730

N.E.2d 1027 (12th Dist.1999) (finding R.C. 2917.21(A)(5) is not

unconstitutionally over broad, even though statute restricts person's ability to

make a telephone call). Indeed, Kronenberg does not have a constitutionally

protected right to make a telephone call for the purpose of harassing another

person. R.C. 29l7.21(B) is not over broad since the First Amendment does not

protect the type of activity that Kronenberg committed.

M39} The third assignment of error is overruled.

H140} Judgment affirmed.

It is ordered that appellee recover from appellant the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

Cuyahoga County Court of Common Pleas to carry this judgment into execution.

The defendant’s conviction having been affirmed, any bail pending appeal is

terminated. Case remanded to the trial court for execution of sentence.

A certified copy of _this entry shall constitute the nj_.zh_rE(iI>a/Eta [p3.16‘s1R1fi1L1:|Z1;E%

Rule 27 ofthe Rul ellate Proc . PER APP'R' 22(0) W MAR 1 9 2015

”"1 7 // cu, MARY J. l}¢YLi3,..JEDGE / / cs ri§°c%Au§?3:T1piiii§ BY Deputy

KATHLEENANN KEOUGH, P.J., CONCURS ONASSIGNMENTS OF ERROR 2 AND 3 BUT CONCURS IN JUDGMENT ONLY ON ASSIGNMENT OF ERROR 1 (SEE SEPARATE OPINION); EILEEN A. GALLAGHER, J ., CONCURS ON ASSIGNMENTS OF ERROR 2 AND 3 AND CONCURS WITH JUDGE KEOUGH’S SEPARATE OPINION ON ASSIGNMENT OF ERROR 1

KATHLEEN KEOUGH, P.J., CONCURRING IN JUDGMENT ONLY IN PART:

{1I41} I concur in judgment only with the majoritys resolution of I

Kronenberg’ s first assignment of error and write separately to address the “prior

offense” and “prior conviction” distinction. I concur fully with the remaining

majority opinion.

H42} In her first assignment of error, iKronenberg contends that

insufficient evidence exists to support ‘her felony. ..conviction for

telecommunications harassment because the state failed to submit aicertified

journal entry of any prior conviction for telecommunications harassment.

Insofar as Kronenberg is attempting to rely on R.C. 2945.75 in support of her

position, the Ohio Supreme Court in State v. Gwen, 134 Ohio St.3d 284, 2012-

{Ohio-5046, 982 N.E.2d 626, has clarified that a judgment entry of conviction

pursuant to R.C. 2945.75(B)(1) is one method of proving a prior conviction for

purposes of elevating the degree of the offense, but not the exclusive method.

H143} The court recognized that other means of proving a prior conviction

exists including stipulation and admission. Id. at 1] 12, 14. The court also

recognized that proof of prior conviction can be achieved by testimony of a

witness who has both knowledge of the prior convictions, and who also can

identify the accused as the offender involved in them. Id. at 1] 22, citing State

v. Frambach, 81 Ohio App.3d 834, 843, 612 N.E.2d 424 (9th Dist.1992)

(“uncontested avowal to the effect that Frambach had suffered ‘a prior theft

conviction’ was sufficient to allow the jurors to conclude beyond all reasonable

doubt that this element of the offense had been established”); State v. Chaney,

128 Ohio App.3d 100, 105-106, 713 N.E.2d 1118 (12th Dist.1998) (uncertified

court records and defendant's testimony coupled with the arresting officer’s

testimony that he was in court when defendant was convicted of prior charge is

sufficient); In re R.B.,=6th Dist. Huron Nos. H-10-O18 and H-10-019, 201l-Ohio-

5042, TI 10 (testimony by victim and ch.i.ld’s Impther regarding the prior offense

and adjudication); see also State v. Matheny, 12th Dist. Preble No. CA87-09-025

(Mar. 21, 1988) (testimony of the officer who investigated prior offense that

defendant was convicted of both the prior offense and the present offense was

sufficient to prove conviction of prior offense). Therefore, a judgment entry of

conviction is not necessarily required to prove a prior conviction.

{1[44} In this case, however, proof of a prior conviction was not required for the state to elevate the degree of the offense. Rather, R.C. 2917.21(C)(2)

provides, in relevant part, that “a violation of division * * *(B) of this section is

a misdemeanor of the first degree on a first offense and a felony of the fifth

degree on each subsequent offense.” Therefore, according to the majority’s

resolution, the state needed only to establish that Kronenberg had a prior offense of telephone harassment pursuant to R.C. 2917.-21 to find her guilty of the elevated degree of telecommunications harassment. While I agree with the

majority’s conclusions, I believe that the “prior offense” needs to ultimately

result in a conviction for the state to use the prior offense as a means to elevate the degree of the offense on a subsequent offense.

{1I45} Whether a statute requires a “prior offense” or “prior conviction,” it remains that this prior ‘“does not simply enhance the penalty but transforms the

crime itself by increasing its degree.” State v. Salupo, 177 Ohio App.3d 354,

2008-Ohio-3721, 894 N.E.2d 746, 11 15 (9th Dist.), quoting State v. Brooke, 113

Ohio St.3d 199, 2007—Ohio-1533, 863 N-.E.2c_l 1024, 1[ 8. Therefore, the prior

offense or conviction becomes an essential element of the crime that the stateP

‘must prove beyond a reasonable doubt. Id.; see also State U. Cooper, 8th Dist.

Cuyahoga No. 90629, 2008-Ohio-5485, 1[ 17-18 (finding the indictment flawed because it did not allege a prior conviction or indicate the degree of the offense

7

for telecommunications harassment).

{$46} In State v. Brantley, 1 Ohio St.2d 139, 205 N.E.2d 391 (1965), the

Ohio Supreme Court distinguished between the words “offense” and “conviction”

when addressing degree enhancements for subsequent offenses. In Brantley, the

defendant committed a “subsequent offense” for gaming prior to his conviction

for his first violation of the gaming statute. The court held at its syllabus,

Where a statute provides that one who violates it shall be punished as for a misdemeanor “for a first offense” and punished as for a felony “for each subsequent offense,” a second violation of that statute may be punished as a “subsequent offense” thereunder if the offender has been convicted of a previous violation of that statute before his indictment for the second violation thereof although the second violation occurred prior to his conviction of the previous violation. (Paragraph two of the syllabus of Carey v. State, 70 Ohio St. 121, distinguished.)

H147} Therefore, in my opinion, while a prior conviction is not needed to

indict the person with the elevated degree of a subsequent offense, the prior

offense must result in a conviction prior to the resolution of the subsequent

offense for a defendant to be convicted on the enhanced degree of the subsequent

offense. The state cannot merely rely on a prior offense without a conviction of

that offense to elevate the degree of a subsequent offense. Without this ultimate

conviction, complaints, unfounded charges, dismissal of charges, or even.

acquittals of those prior offenses could serve as the basis for a felony conviction

for a subsequent offense even though no conviction was ever obtained on that

prior offense.

{1I4_8} In this case, the state was required to prove that Kronenberg had

a prior offense for telecommunications harassment to withstand its burden of

proving the subsequent felony charge for telecommunications harassment.

However, I would find that the prior offense must have resulted in a conviction.

Proof of the prior offense would be of the same manner and methods as set forth

in the Ohio Supreme Court’s opinion in Gwen, 134 Ohio St.3d 284, 2012-Ohio-

5046, 982 N.E.2d 626. Therefore, applying Gwen to the case before this court,

the state offered sufficient evidence through the victim’s testimony to prove that

Kronenberg had a prior offense, which resulted in a conviction, for telephone

harassment. The victim identified that Kronenberg previously was charged with

telephone harassment, he was the victim of the offense, and Kronenberg was

convicted and was sentenced to prison.