COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69323 CITY OF CLEVELAND : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION CAROL PISANI : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 11, 1996 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE CLEVELAND MUNICIPAL COURT CASE NO. CRB-23177 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: CAROLYN W. ALLEN City of Cleveland Chief Prosecuting Attorney CAROL M. SKUTNIK (#0059704) Assistant City Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: UCHE MGBARAHO (#0040274) 14221 Triskett Rd. #101G Cleveland, Ohio 44111 - 2 - SPELLACY, C.J.: Defendant-appellant, Carol Pisani, appeals from her jury trial conviction on one count of telephone harassment in violation of Cleveland Municipal Ordinance Sec. 621.10(b). Appellant assigns the following errors for our review: I. THE TRIAL COURT ERRED IN FAILING TO DISMISS THE CASE AS UNCONSTITUTIONAL AS APPLIED. II. THE TRIAL COURT ERRED IN FAILING TO PROPERLY INSTRUCT THE JURY ON: a) FIRST AMENDMENT FREEDOM OF SPEECH b) AFFIRMATIVE DEFENSE OF CONSENT III. THE EVIDENCE IS INSUFFICIENT TO CONVICT THE DEFENDANT. IV. THE TRIAL COURT ERRED IN USING THE DICTIONARY TO DEFINE A STATUTORY ENACTMENT. V. THE TRIAL COURT ERRED BY NOT GIVING A CURATIVE INSTRUCTION ON A CLEAR PROSECUTORIAL MISCONDUCT. VI. THIS APPEAL IS NOT MOOT. Finding appellant's appeal lacks merit, we affirm. I. On August 18, 1994, appellant was charged with telephone harassment in violation of the City of Cleveland's Municipal Ordinance Section 621.10(b). A jury trial was held on June 1, 1995. On June 7, 1995, appellant was found guilty of telephone harassment. The trial court required appellant to pay a fine of - 3 - $1,000.00 and sentenced appellant to one-hundred eighty (180) days in jail. Ninety (90) days of appellant's jail sentence was suspended and appellant was placed on probation for two (2) years. II. As a result of appellant's divorce in 1993, appellant lost custody of her two children. Subsequently, a Guardian Ad Litem was appointed by the court for appellant's two children. In December 1993, Beth Zone, Director of the Guardian Ad Litem program, was a guest on a radio talk show. During the talk show, Zone discussed the Domestic Relations court and the Guardian Ad Litem program and stated that her phone line was "open to any and everybody." (Tr. 109). Appellant called the talk show, identified herself, and spoke with Zone. Although Zone made it her general policy not to talk directly to litigants, Zone invited appellant to come to her office to discuss her case. In early 1994, appellant did, in fact, take Zone up on her offer to talk with appellant about her case. Appellant conveyed to Zone that she was unhappy with her guardian and with the system. Appellant, however, continued to stop Zone in the courthouse hallways and to stop by Zone's office to discuss her case and her guardian. As appellant's visits became more frequent, Zone told appellant "my hands are tied. You have an attorney. There is nothing I can do for you. There is a guardian in the case. If you are unhappy, speak through your attorney. If you are unhappy with the guardian, file a motion to have the guardian removed." (Tr. - 4 - 32). Appellant, however, failed to communicate with Zone through her attorney. In March, 1994, appellant began calling Zone's office con- tinuously to discuss her case. As a result of the high volume of calls received from appellant, and in order to divert appellant's calls, Zone, with the consent of her supervisor and the adminis- trative judge, purchased her own voice mail. Zone also told appellant "don't call here, don't come here. I am not going to speak to you. There is nothing I can do, stop calling." (Tr. 34). Appellant continued to call Zone, sometimes even three or four times a day, at night, and on the weekends. And as the volume of calls increased, so did the personal nature of the calls. Appellant began leaving derogatory messages on Zone's voice mail about Zone's personal life, her family and other court employees. In late March, 1994, Zone was advised by her supervisor and the administrative judge to keep her phone line on voice mail and to start taping the messages which appellant left. Zone began taping these messages in the first week of April and continued to do so until August when appellant was charged with telephone harassment. III. We start by considering appellant's sixth assignment of error. In her sixth assignment of error, appellant contends that the case sub judice is not moot. - 5 - Appellant was originally sentenced to one hundred-eighty (180) days in prison and required to pay a fine of $1,000.00. The trial court, however, suspended appellant's sentence by ninety (90) days and required appellant to serve two (2) years probation. To date, appellant continues to and remains obligated to serve her two year probationary sentence. In view of the facts 1) that the trial court suspended sentence and placed appellant on two years probation, and 2) the date set for hearing of this appeal is within that two-year period, this court cannot assume appellant has served her sentence, thus, her appeal will not be dismissed as moot. State v. Gonzalez (August 18, 1994), Cuyahoga App. No. 66120, unreported; Cf., State v. McCall (July 8, 1993), Cuyahoga App. No. 63103, unreported. Accordingly, appellant's sixth assignment of error is sustained. IV. In her first assignment of error, appellant contends that the trial court erred when it failed to dismiss the present case as unconstitutional as applied. On appeal, it is the duty of the appellant to provide this this court with a transcript for appellate review. This is necessarily so because an appellant bears the burden of showing error by reference to matters in the record. Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 199. In the absence of an adequate record, the court of appeals is unable to evaluate the - 6 - merits of the assignments of error and must affirm the trial court's decision. Volodkevich v. Volodkevich (1989), 48 Ohio App.3d 313; (App. R. 9, applied). Appellant's first assignment of error concerns facts and evidentiary matters which must be demonstrated from the record. The record before us is insufficient to demonstrate the claimed error. Therefore, in the absence of an adequate record, we are unable to evaluate the merits of the assignment of error and must affirm the trial court's denial of appellant's motion to dismiss. Id. at 314. Accordingly, appellant's first assignment of error is overruled. V. In her second assignment of error, appellant asserts that the trial court failed to properly instruct the jury when it did not adopt appellant's proposed jury instructions. Appellant challenges the trial court's failure to instruct the jury on two of its proposed instructions. Appellant's first proposed jury instruction reads as follows: The Ohio and the United States Constitu- tions grant every citizen freedom of speech an- d neither the United States Constitution nor the Ohio legislature can pass a law abridging a citizen's right to free speech nor to seek redress of grievance against the government and its agencies. To convict any person for telephone harassment the city must prove ill will against the complainant. The gravamen of the offense of telephone harassment is not the fact that the recipient of the call is annoyed - 7 - by the call, rather the offense must be proven in terms of the defendant's purpose. Free speech can be regulated only when the offender uses fighting words. A person cannot be convicted on spoken words unless such words spoken are likely by their very utterance to inflict or provoke the average person to an immediate retaliatory breach of the peace. Crim. R. 30 states in pertinent part that "at the close of the evidence or at such time during the trial as the court reasonably directs, any party may file written requests that the court in- struct the jury on the law as set forth in the request." The general rule is that special instructions which correctly state the law pertinent to the case must be included, at least in substance, in the general charge. State v. Mahoney (1986), 34 Ohio App.3d 114. The trial court and counsel discussed the instructions and, when this particular instruction was discussed, the court said it had decided not to instruct the jury on the portion of the proposed instructions dealing with "ill will." Rather, the trial court indicated that it would read to the jury the First Amendment to the United States Constitution, and also, Article 11, Freedom of Speech, Ohio Constitution. Comparison of what was requested with what was given reveals that, in part, they coincide. The trial court's instruction to the jury regarding freedom of speech set forth, in their entirety, the First Amendment to the United States Constitution and Article 11, Freedom of Speech, of the Ohio Constitution. Thus, the trial court - 8 - correctly stated the law governing freedom of speech in the charge which it gave to the jury. The trial court, however, rejected the portion of appellant's proposed jury instruction which modified the Section 621.10(b) of the City of Cleveland's Municipal Code requiring the City to prove "ill will" before the jury could find appellant guilty of telephone harassment. Rather, the court instructed the jury as follows: [B]efore you can find the defendant guilty, you must find beyond a reasonable doubt that on or about the month of March, 1994 through August, 1994, and in the City of Cleveland, the defen- dant Carol Pisani made telephone calls on a telephone under her control with the purpose to abuse, threaten, annoy, or harass another person. (Tr. 326-327). In those parts in which the appellant's version of the law modifies or expands upon City of Cleveland Municipal Code Sec. 621.10(b), the court below was correct in rejecting this portion of appellant's proposed jury instructions and properly instructing the jury according to the precise language contained in Cleveland Municipal Code Sec. 621.10(b). Mahoney, 34 Ohio App.3d at 119. Appellant's second proposed jury instruction states the following: A person cannot be convicted for telephone harassment where the complainant invited the calls unless the complainant has given an adequate and reasonable notice to the defen- dant to refrain from making those calls. Appellant argues that there was evidence presented at trial supporting a defense of consent, and, therefore, the trial court - 9 - had a duty to instruct the jury on the defense of consent in accordance with appellant's proposed jury instructions. In the case sub judice, Zone, during a radio talk show, invited appellant to come to her office to further discuss her case. Zone, however, did not invite appellant to telephone her office incessantly over a prolonged period of time. Moreover, Zone, on various occasions told appellant that she could no longer discuss appellant's case with her personally, that she would have to deal with appellant through appellant's attorney. Furthermore, Zone told appellant "don't call here, don't come here. I am not going to speak to you." (Tr. 34). Appellant has failed to offer evidence that Zone consented to appellant calling her office between 100 and 200 times during the months of April, 1994 through August, 1994. Furthermore, appellant has also failed to offer evidence that Zone consented to the personal nature of the phone calls. Thus, the trial court properly refused to instruct the jury on the defense of consent. Accordingly, appellant's second assignment of error is overruled. VI. In her third assignment of error, appellant contends that the evidence was insufficient to convict her of the crime of telephone harassment. An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the - 10 - evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259 [syllabus 2]. 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. Id. It is the trier of fact who is best able to weigh the evidence and pass on the credibility of the witnesses. State v. DeHass (1967), 10 Ohio St.2d 230. Only if reasonable minds could not fail to find reasonable doubt of a defendant's guilt will an appellate court reverse a conviction as being against the manifest weight of the evidence. State v. Thomas (1982), 70 Ohio St.2d 79. An appellate court may not substitute its own judgment for that of the fact finder. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77. It is not disputed that a public citizen has the right to call a public agency and express any concerns or grievances which he or she may have with regard to that agency or personnel in the agency. However, where a public citizen makes an extraordinary number of calls to a public agency, and the calls become personal in nature, a question of fact arises as to whether that citizen has crossed the line and such acts constitute harassment. In the case sub judice, testimony was given that appellant initially began stopping in at Zone's office or stopping Zone in - 11 - the courthouse hallways to discuss her case. Although the appellant's visits to the courthouse to see Zone decreased, appellant's phone calls to Zone and the personal nature of those calls increased. Between April, 1994 and August, 1994, Zone testified that appellant had called her between 100 and 200 times. Zone also testified that appellant would on occasion call her between three and four times a day, in the evenings, and on the weekends, often leaving long messages having nothing to do with her case or the Guardian Ad Litem program. The court was also provided with tape recorded evidence of the number and nature of the phone calls made by appellant to Zone from April, 1994 to August, 1994. The City of Cleveland Municipal Code Section 621.10(b) states as follows: No person shall make or cause to be made a telephone call, or permit a telephone call to be made from a telephone under his control, with purpose to abuse, threaten, annoy, or harass another person. Whether appellant crossed the line is a question of fact to be determined by the jury. Sufficient evidence was presented to the court which would have allowed any rational trier of fact to find the essential elements of the crime of telephone harassment to have been proven beyond a reasonable doubt. Therefore, appellant's third assignment of error is overruled. - 12 - VII. In her fourth assignment of error, appellant contends that the trial court erred in using the dictionary to define a statutory enactment. In particular, appellant contends that it was error for the trial court to define "harassment" using Webster's Dictionary. The Legislature has not defined the word "harassment." How- ever, any term which is not defined by a statute is accorded its common, ordinary meaning. City of Cleveland v. GSX Chemical Services of Ohio, Inc. (May 7, 1992), Cuyahoga App. No. 60512, unreported; See also State v. Dorso (1983), 4 Ohio St.3d 60, 62. Furthermore, Ohio Revised Code Sec. 1.42 states that "words and phrases shall be read in context and construed according to the rules of grammar and common usage." The trial court was requested by the jury to provide it with the definition of "harassment." In response to its request, the trial court provided the jury with the following instruction: Ladies and gentlemen of the jury, the state legislature has not defined the term "harassment" in connection with the charge of telephone harassment. So that means you must use your every day common experience definition of the term "harassment." However, to assist you, the Court will read Webster's dictionary definition of the term "harass". This definition is not binding upon the jury. "Harass: To disturb, or annoy constantly, to torment persistently." (Tr. 339-340). It was stated in State v. Hardy (1971), 28 Ohio St.2d 89, 92, that: - 13 - In determining the question of prejudicial error in instructions to the jury, the charge must be taken as a whole, and the portion that is claimed to be erroneous or incomplete must be considered in its relation to, and as it affects and is affected by the other parts of the charge. If from the entire charge it appears that a correct statement of the law was given in such a manner that the jury could not have been misled, no prejudicial error results. (citations omitted.) The supplemental charge given by the trial court, taken in light of the entire charge, was a correct statement of law. Moreover, the trial court specifically told the jury to consider the definition of the word "harassment" in connection with their every day common experience and that the dictionary definition was not binding upon them. Taken as a whole, the court's instructions to the jury were not misleading or prejudicial to the appellant. Therefore, appellant's fourth assignment of error is overruled. VIII. In her fifth assignment of error, appellant asserts that the trial court erred by not giving a curative instruction on a clear prosecutorial misconduct. Appellant contends that during direct examination of the city's witness in chief, the prosecution started crying in front of the jury, and that such conduct by the prosecutor was prejudicial to the appellant. App. R. 12(A)(2) states that "the court may disregard an assignment of error presented for review if the party raising it - 14 - fails to identify in the record the error on which the assignment of error is based ***." After reviewing the record in its entirety, we find that no objection was made by appellant with regard to the behavior of the prosecutor during direct examination of Ms. Zone, nor were any objections made regarding specific behavior of the prosecutor throughout the remainder of the trial. Furthermore, although appellant orally requested the court to instruct the jury that the actions of the prosecutor were unprofessional, giving an inference to the jury that she believes in the case so much that she has to cry before them (Tr. 320), it is unclear from appellant's objection and requested jury instruction the specific conduct being objected to. Where it is unclear from appellant's objection in the record the error on which the assignment of error is based, this court, in accordance with App.R. 12(A)(2), may disregard appellant's fifth assignment of error. As a result of the foregoing, appellant's fifth assignment of error is overruled. Accordingly, the 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 Cleveland Municipal 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. JOSEPH J. NAHRA, J. and TERRENCE O'DONNELL, J. CONCUR. LEO M. SPELLACY CHIEF JUSTICE 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 .