Opinion
No. 109165
11-12-2020
CITY OF CLEVELAND, Plaintiff-Appellee, v. SHANE BURKHART, Defendant-Appellant.
Appearances: Barbara Langhenry, Cleveland Director of Law, Jonathan Cudnik, Assistant Director of Law, Aqueelah A. Jordan, Chief Prosecutor, Joan Bascone and Demetrius A. Williams, Assistant City Prosecutors, for appellee. Christina M. Joliat, for appellant.
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Criminal Appeal from the Cleveland Municipal Court
Case No. 2019 CRB 001943
Appearances:
Barbara Langhenry, Cleveland Director of Law, Jonathan Cudnik, Assistant Director of Law, Aqueelah A. Jordan, Chief Prosecutor, Joan Bascone and Demetrius A. Williams, Assistant City Prosecutors, for appellee. Christina M. Joliat, for appellant. SEAN C. GALLAGHER, P.J.:
{¶ 1} Shane Burkhart appeals his misdemeanor conviction for violating the terms of a protection order. For the following reasons, we affirm.
{¶ 2} In September 2018, the victim obtained a temporary protection order against Burkhart, who waived the ensuing hearing by consenting to the full order of protection. The order in part prohibited Burkhart from contacting the victim in any manner. In January of the following year, the victim was contacted by Burkhart through social media messaging, in which Burkhart referenced a court appearance that occurred two days earlier. The victim believed that Burkhart created a new account to circumvent the block she placed on Burkhart's original social media account. The new account was identical to one previously used by Burkhart, except for the fact that his name appeared in small caps. The victim identified Burkhart as the sender of the message based on the language he used and his knowledge of certain facts demonstrated by the content of the message. Upon this evidence, the trial court found Burkhart guilty of violating the protection order under R.C. 2919.27. Burkhart was sentenced to three years of community control sanctions, with several other sanctions being imposed but suspended.
{¶ 3} In the sole assignment of error, Burkhart claims that his conviction is against the weight of the evidence or, in the alternative, is based upon insufficient evidence.
{¶ 4} A claim of insufficient evidence raises the question whether the evidence is legally sufficient to support the verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. In reviewing a sufficiency challenge, "[t]he 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. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶ 5} On this point, Burkhart's entire argument rests on the notion that "texting the message is a necessary element of the case and requires evidence." According to Burkhart, since his testimony demonstrated that he did not send the disputed message, the city failed to prove each element of the crime beyond a reasonable doubt. This argument fails to address the victim's testimony that established Burkhart to be the person sending the message and thus in violation of the protection order then in place.
{¶ 6} Burkhart's identity as the writer and sender of the January 4th text message was established through a series of statements contained in the message itself. Burkhart admitted to being in court and seeing the victim on January 2, admitted she is his child's mother, confirmed his knowledge of her by referencing her birthday, and made a threat related to their prior relationship. The victim testified that some of the content of the message was known only to Burkhart, and therefore, she was able to identify Burkhart as the author and sender of the message. According to the victim, she and Burkhart were the only ones with knowledge of the court appearance referenced in Burkhart's message, and that only he knew her exact birthday and that he was the father of their child — the victim testified to keeping her personal life with Burkhart private because of the "horrors" she went through with him. In addition, the tone of the message was consistent with the manner in which Burkhart spoke to the victim during their six-year relationship. The content of the January 4th text message, when coupled with the victim's testimony deemed credible by the trier of fact, established Burkhart's identity as the writer and sender of the text message. The city demonstrated Burkhart's guilt for violating the protection order beyond a reasonable doubt.
{¶ 7} A claim that a verdict is against the weight of the evidence involves a separate and distinct test that is much broader than the test for sufficiency. State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 193; Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 7 (the difference between a bench and a jury trial, with respect to the weight of the evidence, rests solely with the unanimity requirement for an appellate panel to reverse a jury trial). In contrast to sufficiency of the evidence, "weight of the evidence involves the inclination of the greater amount of credible evidence." Thompkins, 78 Ohio St.3d 380, at 387, 1997-Ohio-52, 678 N.E.2d 541. While "sufficiency of the evidence is a test of adequacy as to whether the evidence is legally sufficient to support a verdict as a matter of law, * * * weight of the evidence addresses the evidence's effect of inducing belief." State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing Thompkins at 386-387. "In other words, a reviewing court asks whose evidence is more persuasive — the state's or the defendant's?" Id. The reviewing court must consider all the evidence in the record, the reasonable inferences, and the credibility of the witnesses to determine "'whether in resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.'" Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.1983).
{¶ 8} Burkhart has not presented separate arguments in support of the claim that the conviction was entered against the weight of the evidence — in other words, Burkhart does not attempt to discount, or otherwise offer any argument against, the credibility of the city's evidence. His sole argument is that the city failed to present any evidence substantiating the allegations because Burkhart disavowed any knowledge of the message sent to the victim through the social media account. Thus, Burkhart's entire argument rests on the notion that his testimony should be accepted over that of the victim. Under well-settled Ohio law, "'a conviction is not against the manifest weight of the evidence simply because the [trier of fact] rejected the defendant's version of the facts and believed the testimony presented by the state.'" State v. Jallah, 8th Dist. Cuyahoga No. 101773, 2015-Ohio-1950, ¶ 71, quoting State v. Hall, 4th Dist. Ross No. 13CA3391, 2014-Ohio-2959, ¶ 28.
{¶ 9} Because Burkhart has not presented any reason to discredit the victim's accounting of the event, through which the city demonstrated Burkhart's guilt, or offered any argument in support of a claim that the trier of fact lost its way in finding the victim credible, we cannot conclude that a manifest miscarriage of justice exists in this particular case. As a result, the sole assignment of error is overruled.
{¶ 10} We affirm the conviction.
It is ordered that appellee recover from appellant 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 municipal court to carry this judgment into execution. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. /s/_________
SEAN C. GALLAGHER, PRESIDING JUDGE ANITA LASTER MAYS, J., and
MARY EILEEN KILBANE, J., CONCUR