COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68928 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : LARRY FLEMING : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: MARCH 7, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-314651. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Scott G. Salisbury, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Robert R. Clarico, Esq. Assistant Public Defender 100 Lakeside Place 1200 West Third Street Cleveland, OH 44113 -2- DAVID T. MATIA, J.: Larry Fleming, defendant-appellant, appeals from his conviction in the Cuyahoga County Court of Common Pleas, Case No. CR-314651, for the offense of menacing by stalking in violation of R.C. 2903.211. Defendant-appellant assigns three errors for this court's review. Larry Fleming's, defendant-appellant's appeal is not well taken. I. THE FACTS This case arises out of a series of threatening and harassing acts committed by Larry Fleming, defendant-appellant, against Ms. Cheryl Nelson, defendant-appellant's ex-girlfriend, resulting in defendant-appellant's arrest on August 9, 1994. A long history of disputes between defendant-appellant and Ms. Nelson existed prior to defendant-appellant's arrest. Apparently, Larry Fleming, defendant-appellant, and Ms. Nelson were involved in a relationship from 1989 to 1992 which Ms. Nelson ended in February, 1992. Soon After, Ms. Nelson moved into 10812 Earle Avenue in Cleveland, Ohio with her three children and her new boyfriend, Victor Wilson. At this point, Ms. Nelson began experiencing problems with defendant-appellant. These problems included being followed by defendant-appellant into restaurants, repeated telephone calls and driving by Ms. Nelson's home repeatedly for extended periods of time. This conduct by defendant-appellant led to a misdemeanor conviction of menacing by stalking in the Cleveland Municipal Court for which defendant- appellant served time in a penal institution. Defendant- -3- appellant's first conviction of menacing by stalking occurred on June 23, 1993. Defendant-appellant continued to place telephone calls to Ms. Nelson's residence while incarcerated and after he was released. On or about July 1, 1994, Larry Fleming, defendant- appellant, resumed driving by Ms. Nelson's home and calling Ms. Nelson approximately three to four times a day. In addition, defendant-appellant would also drive by Ms. Nelson's home on garbage day and knock over Ms. Nelson's garbage cans with his automobile. On August 8, 1994, Larry Fleming, defendant-appellant, drove by Ms. Nelson's residence. While driving by, defendant-appellant, observed Ms. Nelson and her boyfriend Victor Wilson walking down Earle Avenue. Defendant-appellant and Mr. Wilson entered into an altercation in which defendant-appellant allegedly stabbed Mr. Wilson with a box cutter. Mr. Wilson apparently disarmed defendant-appellant who then got into his automobile and left the scene. The box cutter was turned over to the police the next day. On August 9, 1994, Larry Fleming, defendant-appellant, drove over to Ms. Nelson's residence. Upon his arrival, defendant- appellant, attempted to force Ms. Nelson to speak with him. Ms. Nelson refused and an argument between the two ensued. Mr. Wilson, who had been in the backyard, heard the argument and went to the aid of Ms. Nelson. At this point, defendant-appellant and Mr. Wilson began arguing. Eventually, Mr. Wilson ended the argument by breaking the windshield of defendant-appellant's automobile with a -4- board. Defendant-appellant then left the scene in his automobile. Ms. Nelson decided that, at this point, it would be a good idea to leave the neighborhood so she decided to drive to her mother's home in Brunswick, Ohio. As Ms. Nelson approached the corner of E. 105th Street and Bryant Street, she saw Larry Fleming, defendant- appellant, pacing back and forth in front of his automobile which was parked in front of a public telephone. Ms. Nelson, who become curious as to defendant-appellant's actions, circled the block. The second time Ms. Nelson drove by, she observed that defendant- appellant was placing a telephone call. Fearful that defendant- appellant was planning to call some friends and return to her home, Ms. Nelson returned home and called the police who arrested defendant-appellant. Even after Larry Fleming's, defendant-appellant's, arrest, he continued to call Ms. Nelson from jail in an attempt to induce Ms. Nelson into dropping the charges brought against him by telling the prosecutor that she had lied. Ms. Nelson refused defendant- appellant's request. Eventually, Ms. Nelson had to have her telephone number changed twice so that defendant-appellant could no longer contact her. In addition, prior to the beginning of trial, defendant-appellant threatened the lives of both Ms. Nelson and Mr. Wilson if they testified against him. Larry Fleming, defendant-appellant, was indicted by the Cuyahoga County Grand Jury in Case No. CR-314561 for one count of menacing by stalking in violation of R.C. 2903.211 with a furthermore clause -5- for a prior conviction of menacing by stalking and two violence specifications. In addition, defendant-appellant was indicted for one count of intimidation in violation of R.C. 2921.04. Defendant- appellant was also indicted in Case No. CR-314697 for one count of felonious assault in violation of R.C. 2903.11 arising out of the alleged fight with Mr. Wilson. Both cases were tried together in the Cuyahoga County Common Pleas Court beginning March 2, 1995. A jury was impaneled and on March 6, 1995, returned a verdict of guilty against Larry Fleming, defendant-appellant, to the charge of menacing by stalking with the furthermore clause. The jury returned verdicts of not guilty as to the charges of intimidation and felonious assault. On March 28, 1995, the trial court sentenced Larry Fleming, defendant-appellant, to a two-to-five year term of incarceration at the Lorain Correctional Institution. On April 28, 1995, defendant- appellant filed a timely notice of appeal from his conviction in the Cuyahoga County Common Pleas Court. II. FIRST AND SECOND ASSIGNMENTS OF ERROR Larry Fleming's, defendant-appellant's, first assignment of error states: MR. FLEMING'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION WAS VIOLATED WHEN TRIAL COUNSEL FAILED TO PROPERLY CHALLENGE THE CONSTITUTIONALITY OF R.C. 2903.211(A) ON THE GROUNDS THAT IT IS VAGUE AND OVERBROAD. -6- Larry Fleming's, defendant-appellant's, second assignment of error states: THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT FAILED TO FIND R.C. 2903.211 UNCONSTITUTIONAL. Having a common basis in both law and fact, this court shall consider defendant-appellant's first and second assignments of error concurrently. A. THE ISSUES RAISED: EFFECTIVE ASSISTANCE OF COUNSEL AND PLAIN ERROR. Defendant-appellant argues, through his first and second assignments of error, that he failed to receive effective assistance of counsel and that the trial court committed plain error. Specifically, defendant-appellant maintains that his counsel was ineffective for failing to challenge the constitutionality of R.C. 2903.211. It is defendant-appellant's position that R.C. 2903.211 is both too vague and overbroad to be constitutional. Defendant-appellant maintains further that the trial court committed plain error in failing to find R.C. 2903.211 unconstitutional even though trial counsel failed to raise the issue at trial. Defendant-appellant's first and second assignments of error are not well taken. B. STANDARD OF REVIEW FOR EFFECTIVE ASSISTANCE OF COUNSEL. In order to substantiate a claim of ineffective assistance of counsel, the appellant is required to demonstrate that: 1) the performance of defense counsel was seriously flawed and -7- deficient; and 2) the result of the appellant's trial or legal proceeding would have been different had defense counsel provided proper representation. Strickland v. Washington (1984), 466 U.S. 668, State v. Brooks (1986), 25 Ohio St.3d 144. 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 98; Vaughn v. Maxwell (1965), 2 Ohio St.2d 299. The Supreme Court of Ohio, with regard to the issue of ineffective assistance of counsel, held in State v. Bradley (1989), 42 Ohio St.3d 136, that: "When considering an allegation of ineffective assistance of counsel, a two- step process is usually employed. First, there must be a determination as to whether there has been a substantial violation of any of defense counsel's essential duties to his client. Next, and analytically separate from the question of whether the defendant's Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel's ineffectiveness." State v. Lytle (1976), 48 Ohio St.2d 391, 396-397, 2 O.O.3d 495, 498, 358 N.E.2d 623, 627, vacated in part on other grounds (1978), 438 U.S. 910. This standard is essentially the same as the one enunciated by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668. *** Even assuming that counsel's performance was ineffective, this is not sufficient to warrant reversal of a conviction. "An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Cf. United States v. Morrison, 449 U.S. 361, 364- -8- 365 (1981)." Strickland, supra, at 691. To warrant reversal, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, supra, at 694. In adopting this standard, it is important to note that the court specifically rejected lesser standards for demonstrating prejudice. ***. Accordingly, to show that a 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. State v. Bradley, supra, at 141, 142. C. STANDARD OF REVIEW FOR PLAIN ERROR. In State v. Long (1978), 53 Ohio St.2d 91, the Ohio Supreme Court stated that the plain error doctrine should be applied with, "utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." Id. at paragraph three of the syllabus. The plain error doctrine is almost universally applied in criminal cases, however, the doctrine may be applied to civil cases, even if the party seeking application of the doctrine failed to object at trial, if the error complained of would have a material adverse effect on the character and public confidence in judicial proceedings. Schade v. Carnegie Body Co. (1982), 70 Ohio St.2d 207, 209; Wade v. Disbrow-Fisher Sail Company, Inc. (May 11, 1995), Cuyahoga App. Nos. 67294, 67409 and 67894, unreported. -9- D. DEFENDANT-APPELLANT WAS NOT DENIED EFFECTIVE ASSISTANCE OF COUNSEL NOR DID THE TRIAL COURT COMMIT PLAIN ERROR. Defendant-appellant argues that R.C. 2903.211 is too vague and overbroad to be constitutionally applied. Specifically, defendant-appellant challenges the definition of the term "mental distress" as set forth in the statute. In State v. Francway (August 17, 1995), Cuyahoga App. No. 68116, unreported, this court addressed the identical issue currently raised by defendant-appellant in this action, specifically the constitutionality of R.C. 2903.211. After a thorough analysis in which this court applied the tripartite test for constitutionality as set forth by the United States Supreme Court in Papachristou v. City of Jacksonville (1972), 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110, this court concluded that R.C. 2903.211, Ohio's anti-stalking statute, is constitutionally valid. Given this court's holding in Francway, supra, it cannot now be said that defendant-appellant's trial counsel was ineffective for failing to challenge the constitutionality of the statute in the trial court as there is no evidence to demonstrate that the outcome of the trial would have been different had the constitutional challenge been raised. In addition, given this court's ruling in Francway, supra, the trial court's alleged failure to hold R.C. 2903.211 unconstitutional does not provide the basis for invocation of the plain error doctrine. -10- Defendant-appellant's first and second assignments of error are not well taken. -11- III. THIRD ASSIGNMENT OF ERROR Larry Fleming's, defendant-appellant's, third and final assignment of error states: MR. FLEMING'S DUE PROCESS RIGHTS UNDER ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED AS HIS CONVICTION WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE. A. THE ISSUE RAISED: SUFFICIENCY OF THE EVIDENCE. Defendant-appellant argues, through his third and final assignment of error, that his conviction for the offense of menacing by stalking was not supported by sufficient evidence. Specifically, defendant-appellant maintains that the state failed to prove the elements of "knowingly" and "mental distress" beyond a reasonable doubt. Defendant-appellant's third and final assignment of error is not well taken. B. STANDARD OF REVIEW FOR SUFFICIENCY OF THE EVIDENCE. In State v. Jenks (1991), 61 Ohio St.3d 259, the Ohio Supreme Court re-examined the standard of review to be applied by an appellate court when reviewing a claim of insufficient evidence. An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. -12- (Jackson v. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed. State v. Jenks, supra, paragraph two of the syllabus. A judgment will not be reversed upon insufficient or conflicting evidence if it is supported by competent credible evidence which goes to all the essential elements of the case. Cohen v. Lamko (1984), 10 Ohio St.3d 167. Where there is substantial evidence upon which the trier of fact has based its verdict, a reviewing court abuses its discretion in substituting its judgment for that of the jury as to the weight and sufficiency of the evidence. State v. Nicely (1988), 39 Ohio St.3d 147. The weight to be given the evidence and the credibility of the witnesses are primarily for the trier of fact to determine. State v. DeHass (1967), 10 Ohio St.2d 230. C. EVIDENCE ADDUCED AT TRIAL WAS SUFFICIENT TO SUPPORT CONVICTION. In the case sub judice, both direct and circumstantial evidence was presented at trial by the state in an attempt to prove the elements of the offense of menacing by stalking, R.C. 2903.211, which provides in 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. R.C. 2901.22 defines knowingly as: (B) A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A -13- person has knowledge of circumstances when he is aware that such circumstances probably exist. R.C. 2903.211(c)(2) defines mental distress as: (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. A review of the record demonstrates that testimony was presented which established that defendant-appellant knowingly engaged in a pattern of conduct designed to harass Ms. Nelson and cause her to suffer mental distress. Not only did defendant- appellant continually call Ms. Nelson on the telephone but also drove by her residence daily for a period of time lasting approximately six weeks. In addition, the victim testified that defendant-appellant would drive by her home on garbage day and knock over the garbage cans with his automobile. Finally, Ms. Nelson testified that defendant-appellant had followed her on more than one occasion causing her mental and physical anguish. Applying the standard of review for sufficiency of the evidence as set forth in State v. Jenks, supra, this court finds, after viewing the evidence in a light most favorable to the prosecution, that any rational trier of fact could have found the essential elements of the crime of menacing by stalking, including knowingly and mental distress, proved beyond a reasonable doubt. Accordingly, the jury did not err in finding defendant-appellant guilty of menacing by stalking as sufficient evidence was presented to enable the jury to so conclude. -14- Defendant-appellant's third and final assignment of error is not well taken. Judgment of the trial court is affirmed. -15- 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. PATRICIA A. BLACKMON, P.J. and JOHN T. PATTON, J., CONCUR. DAVID T. MATIA 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 .