COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 69063, 69064, 69065 & 69066 VILLAGE OF BENTLEYVILLE, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION CAROL A. PISANI, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : AUGUST 22, 1996 CHARACTER OF PROCEEDING : Criminal appeals from : Bedford Municipal Court : Case Nos. 93-CRB-1367, : 93-CRB-1368, 93-CRB-1369, : and 93-CRB-1370. JUDGMENT : MODIFIED, AND AS MODIFIED, : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Joseph W. Diemert, Jr. Law Director Village of Bentleyville 1360 S.O.M. Center Road Mayfield Heights, Ohio 44124 For defendant-appellant: Robert R. Clarico Assistant Public Defender 100 Lakeside Place 1200 West Third Street Cleveland, Ohio 44113-1569 Carol Pisani, Pro Se 30 Commons Court Chagrin Falls, Ohio 44022 -3- NAHRA, J.: Appellant, Carol Pisani, is appealing her conviction for four separate counts of telephone harassment. For the following reasons, we affirm the convictions, but modify the sentence. At the time of the charged offenses, Appellant was separated from the victim, Glenn Pisani, and a divorce action had been filed. Glenn Pisani resided at the marital residence in Bentleyville, and had temporary custody of the Pisanis' two children, Carly and Kyle. Appellant was charged by the City of Bentleyville for making calls to Glenn Pisani at the marital residence from January 28, 1993 to March 7, 1993, with purpose to abuse, threaten, annoy or harass Glenn Pisani, in violation of R.C. 2917.21(B), in case no. 93-CRB- 1367, App. No. 69063. In case no. 93-CRB-1368, App. No. 69064, appellant was charged with making calls during the same time period, when Glenn Pisani told her not to call, in violation of R.C. 2917.21(A)(5). In Case No. 93-CRB-1369, App. No. 69065, the charge was for harassing phone calls, R.C. 2917.21(B), from April 12, 1993 to April 18, 1993. Case No. 93-CRB-1370, App. No. 69066, involved a charge for violating R.C. 2917.21(A)(5), calling when Glenn Pisani told her not to call, for the same time period. Glenn Pisani testified that he started receiving numerous annoying and unwanted telephone calls from appellant. Some of the calls were hang-ups, others threatened Mr. Pisani with physical harm if he did not let Mrs. Pisani have custody of the children. Mr. Pisani repeatedly told appellant not to call him. -4- Mr. Pisani had a phone trap placed on the phone by Ameritech. The phone trap recorded 13 calls on January 28, 1993 over a thirteen minute time period; seven calls on January 29 over a ten minute time period; 19 calls on March 7 over a five minute time period; 6 calls on April 12; 7 calls on April 13 over a three minute time span; and 21 calls on April 18. The calls were all hang-ups, threats or insults, and were not made to resolve divorce issues or check on the children. Communications between the parties for divorce matters was supposed to be handled by the parties' attorneys and the children's guardian ad litem. The phone trap did not pick up calls from cellular telephones. A telephone bill for Mrs. Pisani's cellular phone for the time period in question showed numerous calls to the marital residence, sometimes late at night. Glenn Pisani could not recall the content of any specific call listed on the bill or phone trap records. After Glenn Pisani was cross-examined, appellant insisted on representing herself. The court appointed appellant's attorney, Dan Davies, to serve as "technical advisor" to appellant. Patrolman Ronald Adolski testified that he received Mr. Pisani's complaint concerning harassing phone calls. On cross- examination, Mrs. Pisani asked Officer Adolski if he had previous contact with her. On re-direct, Adolski stated he responded to a harassment complaint that Mrs. Pisani was driving by the marital residence in violation of a restraining order. Appellant testified that she never made harassing phone calls to Glenn. She called him to resolve divorce issues or check on the -5- children. She did not call the guardian ad litem to resolve issues, because he charged $150 an hour. Glenn Pisani's attorney did not communicate to her attorney. Using a calendar with notations on it to refresh her memory, appellant explained her reasons for the phone calls. Appellant stated she called numerous times because Glenn would hang up on her, or the answering machine would pick up the call. Neither Glenn nor the children told her not to call. On cross-examination, appellant stated that on August 3, 1994, she was found guilty of two counts of telephone harassment in the Rocky River Municipal Court, for calling Mr. Pisani at work. She also admitted that a restraining order from the domestic relations court dated September 30, 1992, ordered her not to phone Glenn or the children. Appellant's mother, Rose Catalano, testified that appellant was attempting to get her belongings from the marital residence. She was not permitted to testify concerning problems with the divorce, Kyle's problems at school and other issues. I. Appellant's first assignment of error states: MS. PISANI'S RIGHT NOT TO BE PUT IN JEOPARDY FOR THE SAME OFFENSE AS GUARANTEED BY THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION WAS VIOLATED WHEN SHE WAS PROSECUTED FOR TELEPHONE HARASSMENT AFTER HAVING BEEN FOUND IN CONTEMPT FOR THE IDENTICAL ALLEGED ACTIVITIES. Appellant was found in contempt by the Domestic Relations Court for violating the restraining order of September 10, 1992 by -6- phoning Glenn Pisani between January 28, 1993 and March 7, 1993, and was sentenced to ten days incarceration. Appellant contends that the violation of the restraining order was the same offense as the offenses charged in appellate cases 69063 and 69064, so the convictions for telephone harassment violated her rights against double jeopardy. The double jeopardy clause of the United States Constitution and Section 10, Article I of the Ohio Constitution provide that a person cannot be put in jeopardy twice for the same offense. (W)here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not. Blockburger v. United States (1932), 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306, see State v. Phillips (1995), 74 Ohio St.3d 72. Violation of the restraining order and the charges of telephone harassment each require proof of elements the other does not. For the contempt determination, the Domestic Relations Court had to find that a restraining order was in effect, and appellant violated the restraining order. R.C. 2705.02. For the telephone harassment case, the prosecution had to prove appellant made the calls for the purpose of harassment and/or appellant made the calls with knowledge that the victim asked appellant not to call. R.C. 2927.21. Violation of the restraining order and the telephone harassment charges are two separate offenses. See State v. Kimbler (1986), 31 Ohio App.3d 147, cf. State v. Vanselow (1991), 61 Ohio Misc.2d 1. -7- Appellant contends the contempt determination bars the telephone harassment charges by the doctrine of collateral estoppel. See Ashe v. Swenson (1969), 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469. Collateral estoppel means that once a determination of fact is made by a final judgment in proceedings involving the same parties, the issue can not be re-litigated by the parties in a future proceeding. Id. Collateral estoppel only bars a subsequent conviction if the facts in question are decided in favor of the accused. State v. Phillips, supra. Here, the determination in the contempt proceeding was that appellant had made phone calls to Glenn Pisani during the time period in question. Appellant argues that the rule of Grady v. Corbin (1990), 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 applies pursuant to the Ohio Constitution, although the Grady decision was overruled by United States v. Dixon (1993), 509 U.S. ___, 113 S.Ct. 2849, 125 L.Ed.2d 556. Grady held that successive prosecutions may violate double jeopardy where an essential element in the subsequent prosecution constitutes an offense that has already been prosecuted. Neither the Ohio Constitution nor any Ohio Supreme Court decision indicates that the protection against multiple prosecutions is any greater under the Ohio Constitution than under the U.S. Constitution. State v. Gartrell (May 24, 1995), Hamilton App. No. C-940531, unreported, citing State v. Tanner (1993), 90 Ohio App.3d 761, 766. Grady is not valid law in Ohio. Id. Appellant's rights against double jeopardy were not violated. -8- Accordingly, this assignment of error is overruled. II. Appellant's second assignment of error states: MS. PISANI'S RIGHT TO A FAIR TRIAL GUARANTEED BY THE DUE PROCESS CLAUSE TO THE CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED BY THE MISCONDUCT OF THE PROSECUTOR. Appellant asserts prosecutorial misconduct occurred because (1) the prosecutor commented in front of the jury that appellant's attempt to call the victim's mother as a witness was harassment, and (2) the prosecutor elicited testimony from the state's witnesses concerning prior restraining orders when the judge had ruled these witnesses could not comment on the restraining orders. The test for prosecutorial misconduct is whether the prosecutor's remarks were improper and, if so, whether they prejudicially affected substantial rights of the accused. State v. Smith (1984), 14 Ohio St.3d 13. The court should consider: ( 1 ) whether the misconduct is an isolated incident or a "protracted series of improper arguments", (2) whether the defendant objected, (3) whether curative instructions were given, and (4) whether the evidence of guilt was overwhelming. State v. Keenan (1993), 66 Ohio St.3d 402, 410. The prosecutor's comment concerning the defense calling the victim's mother was an isolated incident, and was not prejudicial. It is clear beyond a reasonable doubt the jury would have found appellant guilty had the remark not been made. Smith, supra at 15. -9- The prosecutor did not ask Mr. Pisani or Officer Adolski about the restraining orders, but the witnesses volunteered this information. The prosecutor's remarks were not improper. Furthermore, appellant was not prejudiced because the judge instructed the jury to disregard this testimony. Additionally, the testimony concerning restraining orders was later allowed for purposes of impeaching the credibility of defendant. Accordingly, this assignment of error is overruled. III. Appellant's third assignment of error states: MS. PISANI WAS DENIED HER CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION WHEN TRIAL COUNSEL FAILED TO ADEQUATELY ADVISE MS. PISANI ON TECHNICAL EVIDENTIARY MATTERS AND FAILED TO APPEAR FOR SENTENCING. To establish ineffective assistance of counsel, appellant must show her counsel substantially violated an essential duty and appellant was prejudiced thereby. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, State v. Bradley (1989), 42 Ohio St.3d 136. Counsel is ineffective if his performance falls below an objective standard of reasonableness. Strickland, supra at 693. Deference is given to the strategic decisions of counsel. Id. To show prejudice, appellant must demonstrate that there is a reasonable probability that but for counsel's unprofessional errors, the results of the proceeding would be different. Id. -10- Appellant contends Mr. Davies failed to inform her that she had to request her calendar be placed in evidence. There was no evidence appellant informed Mr. Davies she wished to enter the exhibit into evidence. Mr. Davies did not act below an objective standard of reasonableness, because he was unaware of Mrs. Pisani's desire to enter the exhibit into evidence. Using the calendar to refresh recollection is a reasonable strategic decision. Additionally, there is not a reasonable probability the appellant would have been acquitted had the calendar been entered into evidence. Appellant also claims Davies was ineffective because he did not appear for appellant's sentencing hearing. The trial judge assisted Mrs. Pisani as to what type of information she should present at sentencing. Appellant has not shown how she was prejudiced by Davies' absence at the hearing. Accordingly, this assignment of error is overruled. IV. Appellant's fourth assignment of error states: MS. PISANI'S RIGHT TO A FAIR TRIAL GUARANTEED BY THE DUE PROCESS PROVISIONS OF ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED WHEN THE TRIAL COURT IMPROPERLY LIMITED APPELLANT'S ENTIRE CASE AND IMPROPERLY ALLOWED THE PROSECUTION TO INTRODUCE A TEMPORARY RESTRAINING ORDER WHICH WAS NEVER BINDING ON MS. PISANI. Appellant contends the trial court denied her constitutional right to call witnesses. See Washington v. Texas (1967), 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019. However, in the exercise -11- of a defendant's right to call witnesses, the defendant must comply with the rules of procedure and evidence. Chambers v. Mississippi (1973), 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297. The trial court properly did not allow appellant to call Faith Deagan and Ms. Weatherhead, because the evidence was unnecessarily cumulative. Evid.R. 403(B). The trial court refused to issue process of a subpoena to Dr. Sandra McPherson, the court-appointed psychologist in the Pisani divorce case. Appellant stated Dr. McPherson would be an expert witness concerning a custodial parent's denial of telephone privileges to the noncustodial parent as a weapon in divorce proceedings. These matters were within the knowledge and understanding of the jury and did not require expert testimony. Evid.R. 702. Furthermore, appellant did not file an expert report, as mandated by the judge in the case management conference. Later, appellant stated she wished to call Dr. McPherson as a non-expert witness, to testify that the restraining order was modified by Dr. McPherson, giving appellant phone privileges to call the children. The court said Mrs. Pisani could phone Dr. McPherson, and ask her to testify. Even if the trial court erred in failing to issue a subpoena, appellant was not prejudiced. If the restraining order was modified to allow phone privileges, the modification would be evidenced by journal entries of the Domestic Relations court. The trial court issued subpoenas for Tina McGuire and Sue Pisniewski to appear on May 17. The trial took place May 15 and -12- 16. The absence of Tina McGuire's testimony was not prejudicial to appellant, because appellant testified as to the disputes over the sale of the marital home. Appellant stated that Sue Pisniewski would have testified that she sometimes answered the phone at Glenn Pisani's residence, and Mrs. Pisani's calls were not harassing in nature. Pisniewski could also testify that Mr. Pisani had an answering machine. Appellant was not prejudiced by the absence of Mrs. Pisniewski's testimony. Even if Mr. Pisani had an answering machine, appellant could still violate R.C. 2917.21(A)(5) and (B). Also, appellant testified there was an answering machine. Any calls answered by Sue Pisniewski were not the subject of the charges. The trial court did not err in refusing to subpoena the Cuyahoga County Court of Appeals to bring documents from the Pisani's divorce case. Appellant wished to present letters written by appellant to Glenn Pisani discussing her feelings concerning divorce issues. Appellant could testify as to her feelings, so the evidence was unnecessary and cumulative. The trial court did not err in sustaining objections to questions to Rose Catalano, appellant's mother. It was not established Mrs. Catalano had personal knowledge of divorce issues. Evid.R. 602. Additionally, her testimony would be cumulative to appellant's testimony. The trial court has broad discretion to permit or refuse to permit the recall of a witness. State v. Spirko (1991), 59 Ohio St.3d 1, Evid.R. 611(A). The trial court did not abuse its -13- discretion in refusing to allow appellant to recall Glenn Pisani. Mr. Davies thoroughly cross-examined Glenn Pisani. Testimony as to whether Glenn Pisani had an answering machine was not so significant as to require recall. Appellant was not prejudiced by the admission of temporary restraining order in an initial divorce action which was allegedly never served on appellant. See Evid.R. 103(A). Appellant testified that she never received service. There was also another restraining order which was undisputedly in effect at the times pertinent to the charges herein. Appellant was not denied her right to call witnesses, and she received a fair trial. Accordingly, this assignment of error is overruled. V. Appellant's fifth assignment of error states: MS. PISANI WAS UNFAIRLY PREJUDICED BY THE INTRODUCTION OF OTHER ACTS EVIDENCE IN VIOLATION OF EVID.R. 404 (B) AND EVID. R (SIC) 609. Appellant contends the trial court erred in admitting evidence that Officer Adolski saw appellant driving by the marital residence and driving down a one-way street the wrong way, and that appellant did not stop when Adolski attempted to pull her over. Appellant invited this testimony by asking Officer Adolski on cross examination about his previous dealings with appellant. Appellant opened up this line of questioning, so she can not claim the trial -14- court erred by allowing this evidence. State v. Moore (1994), 74 Ohio App.3d 334, 344. The trial court refused to admit the Rocky River conviction for telephone harassment on direct examination of Glenn Pisani. Although the evidence was admissible for purposes of showing intent or motive, the trial court felt this evidence was too prejudicial. See Evid.R. 404(B), 403. The evidence was admitted to impeach appellant's credibility because she testified she never used the telephone to harass Glenn Pisani. Evidence of a misdemeanor conviction that is not a crime involving dishonesty or a false statement is not admissible to impeach the credibility of the accused. Evid.R. 609, State v. Wadsworth (1993), 86 Ohio App.3d 666, 670. However, any error which occurred was invited by appellant, when she stated she never made harassing phone calls to appellant. See Moore, supra, State ex re. Fowler v. Smith (1994), 68 Ohio St.3d 357, 359. To hold otherwise would be to allow court sanctioned perjury. The trial court did not err in admitting evidence of other acts of the defendant. Accordingly, this assignment of error is overruled. VI. Appellant's sixth assignment of error states: MS. PISANI WAS PREJUDICED WHEN THE SENTENCING JOURNAL ENTRY INDICATED HER SENTENCES WERE TO BE SERVED CONSECUTIVELY WHEN THE TRIAL COURT DID NOT INFORM HER OF THAT FACT IN OPEN COURT. -15- On May 16, 1995, in open court, appellant was sentenced to 180 days in jail for each count, 45 days suspended. The judge did not say whether the sentences would be concurrent or consecutive. Appellee states the sentences were marked consecutive on the case jackets when sentence was imposed, but there is no evidence of this on the record. The journal entry, dated May 16, 1995 and date stamped May 19, 1995, states that the sentences are consecutive. On July 21, 1995, the court granted appellant's motion to mitigate her sentence. The balance of appellant's jail time was suspended, and she was placed on probation for two years. If appellant violates any condition of her probation, she must serve the balance of the days, as originally imposed. All sentences of imprisonment are to be served concurrently, unless the trial court specifies the sentences are consecutive. R.C. 2929.41. The judge failed to specify in open court that the sentences were consecutive, so the sentence pronounced in open court was for concurrent sentences. The journal entry was a modification of the sentence pronounced in court. Appellant was not present for the modification of sentence, so the journal entry was in violation of Crim.R. 43(A), and is void. State v. Bell (1990), 70 Ohio App.3d 765. The sentence as stated in open court, imposing concurrent sentences, is reinstated by this court. See Bell, supra. We note, however, that the trial court may correct an incorrect sentence by a nunc pro tunc entry, as long as the corrected sentence is pronounced in open court with the defendant present. See State v. -16- Calvillo (1991), 76 Ohio App.3d 714, State v. Stevenson (Aug. 24, 1995), Cuyahoga App. No. 68231, unreported. Accordingly, this assignment of error is sustained. VII. Appellant's seventh assignment of error states: THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN THERE IS NO SUBSTANTIAL EVIDENCE UPON WHICH A TRIER OF FACT COULD REASONABLY CONCLUDE THAT THE ELEMENTS OF TELEPHONE HARASSMENT HAD BEEN PROVEN BEYOND A REASONABLE DOUBT. In determining if a conviction is against the manifest weight of the evidence, the appellate court reviews the record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines 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. State v. Martin (1983), 20 Ohio App.3d 172. The reviewing court should consider whether the evidence is credible or incredible, certain or uncertain, reliable or unreliable, conflicting, or fragmentary, whether a witness was impeached, and the personal interest a witness has in testifying. State v. Mattison (1985), 23 Ohio App.3d 10. A reviewing court will not reverse a jury verdict where there is substantial, competent and credible evidence supporting the criminal conviction. State v. Eley (1978), 56 Ohio St.2d 169, Martin, supra. The essential elements of telephone harassment, R.C. 2917.21(A)(5) are: (1) the offender knowingly makes a telephone -17- call; (2) to the recipient of the phone call, to another person at the premises to which the phone call is made or to the premises to which the phone call is made; (3) when the recipient or another person on the premises to which the phone call is made had previously told the caller not to call. Appellant admitted to making the calls, but stated that Glenn and/or the children did not tell her not to call. Glenn Pisani testified he repeatedly told appellant not to call. The credibility of witnesses is primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 320. We find that the testimony of Glenn Pisani that he told appellant not to call was substantial, credible evidence. Appellant's testimony was impeached in several respects. The jury did not lose its way in finding appellant guilty in case nos. 93-CRB-1368 and 93-CRB-1370. The essential elements of telephone harassment, R.C. 2917.21(B), are (1) the offender knowingly makes a phone call; (2) with the purpose to abuse, threaten, annoy or harass another person. Appellant admits making the phone calls, but contends she made them for legitimate purposes, and not to harass. Glenn Pisani testified the calls were threats, insults or hang-ups. The trier of fact did not lose its way in finding that appellant made the phone calls to harass. The testimony of Glenn Pisani was credible. The fact that Glenn Pisani could not remember the contents of any one specific phone call does not render his testimony incredible. The phone trap shows seventy calls to the marital residence. The trial took place two years after the phone -18- calls occurred. Additionally, the number and frequency of phone calls are evidence of a purpose to harass. As mentioned above, appellant's testimony was impeached. The convictions in case nos. 93-CRB-1367 and 93-CRB-1369 were not against the manifest weight of the evidence. Accordingly, this assignment of error is overruled. The decision of the trial court is modified, and as modified, affirmed. -19- 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 Bedford Municipal Court to carry this judgment into execution. Case remanded to the trial court for execution of sentence as modified. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SPELLACY, C.J., and PORTER, J., CONCUR. JOSEPH J. NAHRA 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 .