COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68116 STATE OF OHIO : : PLAINTIFF-APPELLEE : : JOURNAL ENTRY : v. : AND : ERNEST FRANCWAY : OPINION : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 17, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-313164. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Brian McGraw, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Arthur A. Elkins, Esq. Assistant Public Defender 100 Lakeside Place 1200 West Third Street Cleveland, OH 44113 -2- DAVID T. MATIA, P.J.: Ernest Francway, defendant-appellant, appeals the judgment of the Cuyahoga County Court of Common Pleas finding him guilty of menacing by stalking with a "furthermore" clause and violence specification. Defendant-appellant assigns three errors for review concerning the manifest weight of the evidence, the effective assistance of counsel and the constitutionality of the stalking statute, R.C. 2903.211. This court, finding no error, affirms defendant-appellant's conviction. I. STATEMENT OF FACTS In June of 1992, the victim, Jacklynn Zahand, and Ernest Francway, defendant-appellant, began a relationship which lasted through July of 1993. Ms. Zahand testified that in the last few months of their relationship, defendant-appellant had become depressed. When Ms. Zahand ended their relationship, defendant- appellant began following her and acting in such a behavior that Ms. Zahand sought and obtained a protective order against defendant-appellant pursuant to R.C. 2903.213. Subsequently, in January of 1994, defendant-appellant was indicted and found guilty of menacing by stalking. Defendant-appellant spent six months incarcerated and was released June 8, 1994. At the time defendant-appellant was imprisoned, the victim was living with her daughter, Dawn Zahand. However, by the time defendant-appellant was released, the victim was married and lived elsewhere. Beginning on June 8, 1994, Ernest Francway, defendant- appellant, had been seen driving his motorcycle past the home of -3- Dawn Zahand a number of times each day. Several times defendant- appellant approached Dawn Zahand and questioned her about the whereabouts of her mother. During this period, Dawn Zahand called the police three times as a result of the actions of defendant- appellant. On July 2, 1994, Jacklynn Zahand saw defendant-appellant at a bank. Ms. Zahand testified defendant-appellant was on his motorcycle, circling around the parking lot staring at her threateningly. Eventually, defendant-appellant rode away. On July 5, 1994, Ms. Zahand testified defendant-appellant passed her while driving down West 117th Street. Defendant-appellant maneuvered a "u-turn" and began following her. Defendant-appellant circled her automobile and pounded his fist on the car. Defendant-appellant then chased Ms. Zahand for several miles. On July 7, 1994 a similar incident occurred where defendant-appellant again followed Ms. Zahand and made several threatening driving moves. At this point, Ms. Zahand called the Cleveland Police Department and filed a report. Defendant-appellant was arrested soon thereafter. On August 22, 1994, Ernest Francway was indicted for menacing by stalking in violation of R.C. 2903.211. The indictment contained a "furthermore" clause that related to defendant- appellant's January 10, 1994 conviction for menacing by stalking and a violence specification for previously being convicted for aggravated menacing involving another woman. After the trial court overruled appellant's motion for competency determination, the case proceeded to a jury trial on -4- September 28, 1994. Defendant-appellant filed a Crim.R. 29 motion for acquittal which was denied. On September 30, 1994, Ernest Francway, defendant-appellant, was found guilty as charged. Defendant-appellant, timely files this appeal. II. FIRST ASSIGNMENT OF ERROR Ernest Francway, defendant-appellant, states as his first assignment of error: I. THE TRIAL COURT ERRED WHEN IT ENTERED JUDGMENT AGAINST APPELLANT WHEN THE CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. A. ISSUE RAISED: WHETHER APPELLANT'S GUILTY VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Defendant-appellant argues the guilty verdict was against the manifest weight of the evidence. Specifically, defendant- appellant argues the testimony of the victim was "uncertain and unreliable at best" and merely supports his contention that the parties crossed paths accidentally. Since the testimony offered by the other state's witnesses did not prove beyond a reasonable doubt that defendant-appellant's conduct on July 2nd, 5th and 7th of 1994 constituted a knowing attempt to cause either physical harm or mental distress, the conviction for menacing by stalking is against the manifest weight of the evidence. Defendant-appellant's first assignment of error is not well taken. B. STANDARD OF REVIEW: MANIFEST WEIGHT OF THE EVIDENCE. It is primarily the function of the jury to determine the evidence and credibility of the witnesses. State v. DeHass -5- (1967), 10 Ohio St.2d 230. However, when an issue concerning the manifest weight of the evidence is presented on appeal, this court utilizes the test articulated by the court in State v. Martin (1983), 20 Ohio App.3d 172, 175: The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the 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. See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42. "A reviewing court cannot reverse a judgment of conviction in a criminal case where there is sufficient evidence presented to the jury which, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt." State v. Eley (1978), 56 Ohio St.2d 169, 172. See, also, State v. Mattison (1985), 23 Ohio App.3d 10. C. THE JURY VERDICT WAS NOT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In the case sub judice, Ernest Francway, defendant-appellant was found guilty of menacing by stalking in violation of R.C. 2903.211 which states in pertinent part: (A) No person by engaging in a pattern of conduct shall knowingly cause another to believe that the offender will cause physical harm to the other person or cause mental distress to the other person. * * * (C) As used in this section: -6- (1) "Pattern of conduct" means two or more actions closely related in time, whether or not there has been a prior conviction based on any of those actions or incidents. (2) "Mental distress" means any mental illness or condition that involves some temporary substantial incapacity or mental illness or condition that would normally require psychiatric treatment. Testimony was presented which established immediately after defendant-appellant had been released from incarceration for menacing by stalking the victim, he began harassing the victim's daughter in an effort to find out where the victim presently resides. On two occasions, defendant-appellant did in fact harass the victim with threatening driving maneuvers and in one case, pounding his fist on her automobile. The victim further testified that she received repeated phone calls at her place of employment from defendant-appellant. Finally, the victim testified that the actions of defendant-appellant caused her physical as well as mental distress. This evidence, if believed, would convince the average mind that defendant-appellant was guilty beyond a reasonable doubt of menacing by stalking as defined above. As such, we cannot hold that the jury lost its way and created a miscarriage of justice. Accordingly, the defendant-appellant's guilty verdict is not against the manifest weight of the evidence. Defendant- appellant's first assignment of error is not well taken. -7- III. THIRD ASSIGNMENT OF ERROR In an effort for continuity we will next address Ernest Francway's, defendant-appellant's, third assignment of error which provides: III. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT FAILED TO FIND R.C. 2903.211 UNCONSTITUTIONAL. A. ISSUE RAISED: WHETHER R.C. 2903.211 IS UNCONSTITUTIONAL. Defendant-appellant argues R.C. 2903.211 is void for vagueness and overbroad since: 1) the term "mental distress" is subject to a variety of interpretations and 2) the statute could be interpreted in such a manner that would restrict and/or curtail his right to liberty of movement and other constitutionally protected activities. Defendant-appellant's third assignment of error is not well taken. B. FAILURE TO RAISE ISSUE OF CONSTITUTIONALITY OF STATUTE AT TRIAL LEVEL BARS CONSIDERATION ON APPEAL. In the case sub judice, there is no dispute that the defendant-appellant's counsel failed to raise the issue of the constitutional validity of menacing by stalking as defined in R.C. 2903.211. As the Ohio State Supreme Court stated in State v. Awan (1986), 22 Ohio St.3d 120, syllabus: Failure to raise at trial court level the issue of the constitutionality of a statute or its application, which is apparent at the time of trial, constitutes waiver of such issue and a deviation from this state's orderly procedure, and therefore need not be heard for the first time on appeal. -8- See, also, State ex rel. Fisher v. Reno Hotel, Inc. (1994), 95 Ohio App.3d 67. As such, defendant-appellant's claim is deemed waived. Defendant-appellant's third assignment of error is not well taken. IV. SECOND ASSIGNMENT OF ERROR Ernest Francway's, defendant-appellant's, second assignment of error provides: II. APPELLANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I, OF THE OHIO CONSTITUTION. A. ISSUE RAISED: WHETHER APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL. Ernest Francway, defendant-appellant, argues he did not receive effective assistance of counsel. Specifically, defendant-appellant argues his trial counsel was ineffective for failing to challenge the constitutional validity of R.C. 2903.211 as it applies in this case. Defendant-appellant's second assignment of error is not well taken. B. STANDARD OR REVIEW: INEFFECTIVE ASSISTANCE OF COUNSEL. The Sixth Amendment to the United States Constitution provides that the accused shall enjoy the right to "have the Assistance of Counsel" in all criminal prosecutions. See, also, Section 10, Article I, Ohio Constitution. The Supreme Court of the United States has recognized that the Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right -9- to a fair trial in that it assures the fairness, and thus, the legitimacy of our adversary process. Powell v. Alabama (1932), 287 U.S. 45; Gideon v. Wainwright (1963), 372 U.S. 335. The constitutional right to counsel is the right to effective assistance of counsel. McMann v. Richardson (1970), 397 U.S. 759. In State v. Bradley (1989), 42 Ohio St.3d 136, the Supreme Court extensively discussed the charge of ineffective assistance of counsel. At syllabus two and three the court held: 2. Counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard reasonable representation and, in addition, prejudice arises from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2 O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S. 668, followed.) 3. To show that defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different. Finally, in reviewing a claim of ineffective assistance of counsel, it must be presumed that a properly licensed attorney executes his legal duty in an ethical and competent manner. State v. Smith (1985), 17 Ohio St.3d. C. APPELLANT HAS FAILED TO DEMONSTRATE INEFFECTIVE ASSISTANCE OF COUNSEL. -10- Ohio's anti-stalking law became effective on November 5, 1992 in an attempt to address a gap in Ohio's Criminal Code which required an actual assault on a person and/or property before law enforcement officials could come to the aid of victims of stalkers. Stated differently, R.C. 2903.211 provides the authority to help stalking victims before they are harmed. In this case, defendant-appellant argues R.C. 2903.211 is unconstitutionally vague and impermissibly overbroad. With regard to the constitutionality of the menacing by stalking statute, we note that this is a case of first impression for this court. As such, for purposes of defendant-appellant's claim of ineffective assistance of counsel, we must turn toward well established standards of statutory review. The challenging party carries a heavy burden to establish the unconstitutionality of a statute. As the court stated in State v. Collier (1991), 62 Ohio St.3d 267, 269: *** [A]ll legislative enactments must be afforded a strong presumption of constitutionality. Moreover, if at all possible, statutes must be construed in conformity with the Ohio and United States Constitutions. Lastly, the party asserting that a statute is unconstitutional must prove this assertion beyond a reasonable doubt. (citations omitted.) A tripartite analysis must be applied when examining the void- for-vagueness doctrine. See Papachristou v. City of Jacksonville (1972), 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110. First, the statute must provide "adequate notice and fair warning" to persons so they can conform their conduct to the letter of the -11- statute. "A statute must fairly warn persons of ordinary intelligence as to what constitutes the prohibited conduct." State v. McDonald (1987), 31 Ohio St.3d 47, 48. See, also, Akron v. Rowland (1993), 67 Ohio St.3d 374. Thus, under the first prong of the analysis, for a statute to be unconstitutionally vague the challenging party must show the statute is vague not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard is specified at all. See State v. Anderson (1991), 57 Ohio St.3d 168. While serving overlapping functions with the first prong, the second prong provides the language of the statute must not lend itself to arbitrary, capricious or discriminatory enforcement. The statute must set forth minimal guidelines for law enforcement officials and triers of fact in order to prevent arbitrary and discriminatory enforcement. See Kolender v. Lawson (1983), 461 U.S. 352. A statute's language cannot permit "a standardless sweep that allows police officers, prosecutors and juries to pursue their personal predilections." Smith v. Goguen (1974), 415 U.S. 566, 575. Finally, the third prong states a statute must not unreasonably inhibit fundamental constitutionally protected freedoms. Boos v. Barry (1988), 485 U.S. 312. In addressing a challenge based upon the overbreadth doctrine, a statute may be invalidated only if there is a realistic danger that the statute itself will significantly compromise recognized constitutional -12- protections; hence the overbreadth must be substantial. City Council of Los Angeles v. Taxpayers for Vincent (1984), 466 U.S. 789; New York v. Ferber (1982), 458 U.S. 474. See, also, State v. Hughes (March 13, 1992), Miami App. No. 90-CA-54, unreported. Again, menacing by stalking as defined in R.C. 2903.211 states in pertinent part: (A) No person by engaging in a pattern of conduct shall knowingly cause another to believe that the offender will cause physical harm to the other person or cause mental distress to the other person. * * * (C) As used in this section: (1) "Pattern of conduct" means two or more actions closely related in time, whether or not there has been a prior conviction based on any of those actions or incidents. (2) "Mental distress" means any mental illness or condition that involves some temporary substantial incapacity or mental illness or condition that would normally require psychiatric treatment. It is well established that courts do not require rigid phraseology because often the "conduct that is sought to be prohibited does not lend itself to concise, specific wording." State v. McDonald 31 Ohio St.3d at 49. Furthermore the presence of a culpable intent requirement, i.e., knowingly, has been held to undermine the argument that application of a law would be so unfair that it must be held invalid as it provides a "precise and comprehensive standard which is well within the ability of a -13- person of common intelligence to understand. ***" Cincinnati v. Hoffman (1972), 31 Ohio St.2d 163, 166. See, also, Boyce Motor Lines, Inc. v. United States (1952), 342 U.S. 337. Ernest Francway, defendant-appellant, begins by arguing there was no allegation of physical harm. As applied in this case, defendant-appellant argues the term "mental distress" as used in R.C. 2903.211 is unconstitutionally vague. We disagree. We find this language would put on notice a person of common and/or ordinary intelligence as to what conduct is being proscribed. "Mental distress" is defined as any mental illness/condition that involves some temporary substantial incapacity or that would normally require psychiatric treatment. Therefore, as applied in this case, the statute proscribes a person knowingly engaging in a pattern of conduct causing the victim to suffer a mental illness/condition involving some temporary substantial incapacity or that normally requires psychiatric treatment. Along with the legislature, we recognize the term "mental distress" is not a specific, easily defined ailment but rather a term which encompasses many distinguishable conditions. The fact that these conditions do not lend themselves to specific wording does not invalidate the statute. See State v. McDonald, supra. Accordingly, we find the language of the statute would put a reasonable person of ordinary intelligence, law enforcement officials and triers of fact on notice as to what conduct is prohibited. -14- As to the third prong of the analysis, defendant-appellant argues the statute substantially inhibits his constitutional right to "liberty of movement." However, with regards to the overbreadth doctrine, there exists case law which holds the language of R.C. 2903.211 is not constitutionally overbroad. In State v. Bilder (Dec. 30, 1994), Summit App. No. 16754, unreported, the court addressed the constitutionality of Section 135.09 of the Akron City Code which is analogous to the language of R.C. 2903.211. The court concluded the ordinance was not constitutionally overbroad as the defendant did not have a constitutionally protected right to engage in conduct that caused the victim mental distress. See, also, City of Dayton v. Smith (Nov. 8, 1994), Cuyhaoga App. No. 94-CRB-5082, unreported. We find defendant-appellant has failed to establish a reasonable probability that had defendant-appellant's counsel raised the issue as to the constitutionality of R.C. 2903.211, the outcome of the trial would have been different for the following reasons. First, defendant-appellant has failed to provide any case law supporting the proposition that R.C. 2903.211 is unconstitutionally vague and overbroad. In fact, the small amount of case law available regarding this issue holds in favor of the statute's constitution-ality. Second, there is a presumption of constitutionality with regards to validly enacted legislation. Finally, our tripartite analysis of the language of R.C. 2903.211 leads us to believe the term "mental distress" as used in the statute is constitutionally valid. For these -15- reasons, Ernest Francway's, defendant-appellant's, second assignment of error is not well taken. Judgment affirmed. -16- It is ordered that appellee recover of appellant its 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 Common Pleas Court 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 mandate pursuant to Rule 27 of the Rules of Appellate Procedure. KARPINSKI, J., CONCURS; and DYKE, J., CONCURS WITH CONCURRING OPINION. DAVID T. MATIA PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68116 STATE OF OHIO : : Plaintiff-appellee : : vs. : CONCURRING OPINION : ERNEST FRANCWAY : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : AUGUST 17, 1995 DYKE, J., CONCURRING: While concurring in the final judgment and disposition of this appeal, I can not concur in the legal analysis contained in the second assignment of error. The issue of the constitutionality of R.C. 2903.211 is not only unnecessary to the determination of appellant's ineffective assistance of counsel claim, the issue is not before this Court for review. The inclusion of this issue renders the analysis clearly an advisory opinion and not the law in Cuyahoga County. Including a consideration of the issue in the second assignment of error is clearly an effort to improperly bootstrap the constitutionality of the statute to the properly raised issue of ineffective assistance of counsel. I agree with the holding in the third .