For reasons we will get to, James Thomas, of Hamilton
County, Ohio was convicted
of three counts of menacing by stalking
under Ohio Revised Code § 2903.211 and two counts of
telecommunications harassment under Ohio Revised Code § 2917.21(B).
The
first menacing-by-stalking and telecommunications-harassment complaints
encompassed Thomas's behavior leading up to June 14.
The second menacing and
harassment charges alleged conduct occurring on or about June 15, and the third
menacing complaint dealt with his actions on June 16.
State v. Thomas, 2014
WL 2957237 (Ohio Court of Appeals – 1st District 2014). He was convicted after a bench trial; Thomas
represented himself. State v. Thomas, supra.
This, according to the Court of Appeals, is how the
prosecution arose:
Thomas had been dating Nickole Davis
for about a year when their relationship came to an end in the spring of 2012.
In February 2013, she verbally told him not to contact her anymore, and on
March 2, she responded to an email from him with the following message: `I
won't say this again . . . Stop contacting me.’
Despite her directives, Thomas
continued his efforts at reconciliation by showering her with emails and
leaving various “presents” outside of her home at night.
The following are just a few of the
items Thomas left at Davis's home throughout the month of May: a hand-carved
mask, a stethoscope, an expandable file folder, and an empty wine bottle. On
some occasions, Thomas would email her afterward to ask if she had received his
gifts. By the end of May, the frequency of his emails had increased such that
she received several messages from him each day. Davis explained that his
presence at her home was particularly frightening because she had never told
him where she lived.
She testified that:
`[e]very night I had to doublecheck
[sic] my doors, doublecheck [sic] the windows. I don't know how many times I
would look out there and see what's going on in the driveway or the car. Every
morning I woke up, I know I came downstairs it would be something new, * * *
and it affected me all kinds of emotionally. * * * [I]t affected my ability at
work because I didn't know if he was going to show up while I wasn't there.’
On June 14, his contact escalated to
the point that she involved the police. On that day, she discovered a Styrofoam
cooler sitting on her car, wrapped in aluminum foil. Because the package
‘looked suspicious, Officer Steven Rogers summoned the bomb squad to the scene.
After ensuring the package was safe,
the police opened it to find a blood pressure cuff, a psychology folder, and a
cupcake. Davis also received two emails from Thomas that day -- one
acknowledged that he had left a present outside, saying `It's there,’ and
another contained a link to a pornographic video and asked if she wanted to
`make this happen.’
On June 15, Thomas sent Davis six
emails. The first warned, `I will NOT allow you to be so ugly towards me.’ The
other five messages contained links to news articles with such riveting
headings as `700–Pound Snake Found In North Carolina’ and `Illuminati Council
of 13 Human Sacrifice in Denver Colorado!’
The police responded to Davis's house a
second time on June 16, after she reported having seen Thomas on her property.
True to form, Thomas sent her two more messages that day, one of which alluded
to him having left another gift for her.
State v. Thomas, supra.
Thomas made several arguments on appeal as to why his
conviction should be reversed, but this post only focuses on one of them: whether the evidence presented at his trial
was sufficient to have proved his guilty beyond a reasonable doubt. State
v. Thomas, supra.
As this site explains, when an appeal raises a
sufficiency of the evidence challenge the appellate court does not reweigh the
evidence; instead, it looks at whether the evidence presented to the trier of
fact (the judge, in this case) would convince the average person that the state
had proven its case under the applicable standard of proof, which is reasonable
doubt in a criminal case.
The Court of Appeals first took up Thomas’ challenge to his
menacing by stalking convictions, noting that the statute states that “[`n]o person by engaging in a pattern of conduct shall
knowingly cause another person to believe that the offender will cause physical
harm to the other person or cause mental distress to the other person.’” State v. Thomas, supra (quoting Ohio
Revised Code § 2903.211).
Thomas argued, first, that
the statute requires proof the victim
actually suffered physical harm or mental distress. But we have held that `where
mental distress is alleged under [Ohio Revised Code] 2903.211(A)(1), it is
sufficient to demonstrate that an offender, by engaging in a pattern of
conduct, knowingly caused the victim to believe the offender would cause the
victim mental distress.’ Griga v. Dibenedetto, 988 N.E.2d 590 (Ohio
Court of Appeals 2012).
Davis testified that Thomas's presence
at her home `terrified’ her and his constant communications interfered with her
ability to sleep and work. She persistently checked the locks on her windows
and doors at home out of fear for her safety.
State v. Thomas, supra.
Thomas’ next challenge with regard to the menacing by
stalking convictions was
whether the state presented sufficient
evidence to prove [he] engaged in a `pattern of conduct’ with respect to each
menacing-by-stalking conviction. Ohio Revised Code § 2903.211(D)(1) defines a `pattern of conduct’
as `two or more actions or incidents closely related in time.’ We have previously said there is `no
requirement that the pattern of conduct be proved by events from two different
days.’ State v. Chandler, 2004–Ohio–248
(Ohio Court of Appeals 2004). . . .
Moreover, the statute does not define
`closely related in time.’ `In failing to delimit the temporal period within
which the two or more actions or incidents must occur, the statute leaves that
matter to be determined by the trier of fact on a-case-by-case basis.’ Ellet
v. Falk, 2010–Ohio–6219 (Ohio Court of Appeals 2010). Here, Thomas
committed more than two acts during each time period at issue, thereby
demonstrating a pattern of conduct for each charge.
State v. Thomas, supra.
Finally, the court explained that Thomas
acknowledged at trial that he received
the March 2 email in which Davis told him not to contact her anymore. Thus, the
evidence indicated Thomas acted knowingly, meaning that he was `aware that his
conduct [would] probably cause a certain result[.]’ See Ohio Revised Code § 2901.22(B).
We conclude that the state adduced
substantial, credible evidence with respect to each charge from which the trial
court could find that the state proved beyond a reasonable doubt that Thomas
knowingly engaged in a pattern of conduct giving Davis reason to believe he
would cause her mental distress. . . .
State v. Thomas, supra.
The Court of Appeals then took up Thomas’ challenge to the
sufficiency of the evidence presented at trial to prove he committed
telecommunications harassment in violation of
Ohio Revised Code § 2917.21(B). State
v. Thomas, supra. It began its analysis of this issue by noting that the
trial judge
also convicted Mr. Thomas of two counts
of telecommunications harassment under Ohio Revised Code § 2917.21(B),
which provides: `No person shall make or cause to be made a telecommunication *
* * with purpose to abuse, threaten, or harass another person.’
The first conviction was supported by
any one of the near-daily emails he sent in May and early June. Two of these
emails indicate that he had been observing her activity. For example, one read:
`That was me that called you this Morning. I know you were/are still sleeping.
Staying out late causes sleeping much the next day.’
And Thomas sent another six emails on
June 15, any one of which could have formed the basis of the second harassment
conviction. We believe the evidence was sufficient for the trial court to find
that the state proved beyond a reasonable doubt that Mr. Thomas sent the
messages with the purpose to harass Ms. Davis. . . .
State v. Thomas, supra.
The Court of
Appeals therefore concluded its consideration of Thomas’ arguments on the
sufficiency of the evidence issue by explaining that
[n]or can we say Thomas's convictions
were against the weight of the evidence. It was for the trial court to assess.
Davis's credibility.
Moreover, Thomas admitted that he sent
the emails and left the gifts at her home. Our review of the entire record
fails to persuade us that the trial court clearly lost its way and created such
a manifest miscarriage of justice that we must reverse Mr. Thomas's convictions
and order a new trial. See State v. Thompkins, 78 Ohio
St.3d 380,, 678 N.E.2d 541 (Ohio Supreme Court 1997). We overrule the first
assignment of error.
State v. Thomas, supra.
After rejecting the other arguments Thomas made on appeal,
the Court of Appeals affirmed his conviction.
State v. Thomas, supra.
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