[Cite as State v. Sims, 2012-Ohio-3106.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                     :

        Plaintiff-Appellee                        :            C.A. CASE NO.        24763

v.                                                :            T.C. NO.   11CRB3428

BRANDI SIMS                                       :            (Criminal appeal from
                                                                Municipal Court)
        Defendant-Appellant                       :

                                                  :

                                           ..........

                                           OPINION

                         Rendered on the    6th       day of     July     , 2012.

                                           ..........

STEPHANIE COOK, AttY. Reg. No. 0067101, Chief Prosecutor, City of Dayton, 335 W.
Third Street, Room 372, Dayton, Ohio 45402
       Attorney for Plaintiff-Appellee

JOSHUA M. KIN, Atty. Reg. No. 0086965, 2700 Kettering Tower, Dayton, Ohio 45423
     Attorney for Defendant-Appellant

BRANDI SIMS, 175 N. Marion Street, Dayton, Ohio 45417
    Defendant-Appellant

                                           ..........

DONOVAN, J.
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       {¶ 1}    Appointed counsel for defendant-appellant Brandi Sims submitted an

appellate brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493

(1967), alleging that no arguably meritorious issues exist for appeal. After a thorough

review of the record, this Court agrees that the trial court’s proceedings were proper, and we

affirm the trial court’s judgment.

       {¶ 2}    Sims was originally charged with one count of menacing, in violation of

R.C. 2903.22, a misdemeanor of the fourth degree, and one count of telephone harassment,

in violation of R.C. 2917.21(A)(5), a misdemeanor of the first degree. After a bench trial

held on June 2, 2011, the trial court found Sims guilty of both counts. The trial court

ordered her to serve thirty days in jail for the charge of menacing, and 180 days in jail on the

charge of telephone harassment with 145 days suspended. The trial court further ordered

that the sentences be served concurrently. Lastly, the trial court sentenced Sims to two

years of supervised probation.

       {¶ 3}    Sims filed a timely notice of appeal with this Court on August 2, 2011. On

March 27, 2012, appointed counsel representing Sims submitted an Anders brief, alleging

that no arguably meritorious issues exist for appeal. By magistrate’s order of April 2, 2012,

we informed Sims that her counsel filed an Anders brief and informed her of the significance

of an Anders brief. We invited Sims to file a pro se brief assigning any error for our review

within sixty days of April 2, 2012. Sims has not filed anything with this Court. We also

note that the State has not filed a responsive brief.

       {¶ 4}    Although arguing that there are no meritorious claims to raise on Sims’

behalf, her attorney found three potential assignments of error; to wit: (1) whether the trial
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court erred when it overruled Sims’ objection to the admission of the recorded voicemails;

(2) whether the trial court erred when it overruled Sims’ Crim. R. 29 motion made at the

close of the State’s case; and (3) whether the trial court’s guilty verdict is against the

manifest weight of the evidence. Upon review, we agree with appellate counsel that these

potential assignments of error have no arguable merit.

       {¶ 5}    With respect to the admission or exclusion of evidence, the trial court has

broad discretion and its decision in such matters will not be disturbed by a reviewing court

absent an abuse of discretion that has caused material prejudice. State v. Noling, 98 Ohio

St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88. As the Supreme Court of Ohio determined:

               “Abuse of discretion” has been defined as an attitude that is

       unreasonable, arbitrary or unconscionable. (Internal citation omitted). It is

       to be expected that most instances of abuse of discretion will result in

       decisions that are simply unreasonable, rather than decisions that are

       unconscionable or arbitrary.

               A decision is unreasonable if there is no sound reasoning process that

       would support that decision. It is not enough that the reviewing court, were

       it deciding the issue de novo, would not have found that reasoning process to

       be persuasive, perhaps in view of countervailing reasoning processes that

       would support a contrary result. AAAA Enterprises, Inc. v. River Place

       Community Redevelopment, 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).

       {¶ 6}    On this record, we conclude that the trial court did not improperly admit the

voice recordings of telephone calls to the victim in which Sims participated. The State laid
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a proper foundation for the admission of the tapes, and the victim identified one of the two

voices on the taped phone conversations as belonging to Sims.

       {¶ 7}    Appellate counsel also contends the trial court potentially erred when it

denied Sims’ Crim. R. 29 motion for acquittal made at the close of the State’s case. This

assignment is essentially an attack on the sufficiency of the evidence, and we will treat it as

such. In his final potential assignment, appellate counsel argues that Sims’ convictions for

menacing and telephone harassment were against the manifest weight of the evidence.

       {¶ 8}    “A challenge to the sufficiency of the evidence differs from a challenge to

the manifest weight of the evidence.”         State v. McKnight, 107 Ohio St.3d 101,112,

2005-Ohio-6046, 837 N.E.2d 315. “In reviewing a claim of insufficient evidence, ‘[t]he

relevant inquiry is whether, after reviewing 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.’ (Internal citations omitted). A claim that a jury

verdict is against the manifest weight of the evidence involves a different test. ‘The court,

reviewing the entire record, weighs the evidence and all reasonable inferences, considers the

credibility of 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. The discretionary power to grant a

new trial should be exercised only in the exceptional case in which the evidence weighs

heavily against the conviction.’” Id. (Internal citations omitted).

       {¶ 9}    The credibility of the witnesses and the weight to be given to their testimony

are matters for the trier of facts to resolve. State v. DeHass, 10 Ohio St.2d 230, 231, 227
                                                                                                5

N.E.2d 212 (1967). “Because the factfinder * * * has the opportunity to see and hear the

witnesses, the cautious exercise of the discretionary power of a court of appeals to find that a

judgment is against the manifest weight of the evidence requires that substantial deference

be extended to the factfinder’s determinations of credibility. The decision whether, and to

what extent, to credit the testimony of particular witnesses is within the peculiar competence

of the factfinder, who has seen and heard the witness.”            State v. Lawson , 2d Dist.

Montgomery No. 16288, 1997 WL 476684 (Aug. 22, 1997).

       {¶ 10} This court will not substitute its judgment for that of the trier of facts on the

issue of witness credibility unless it is patently apparent that the trier of fact lost its way in

arriving at its verdict. State v. Bradley, 2d Dist. Champaign No. 97-CA-03, 1997 WL

691510 (Oct. 24, 1997).

       {¶ 11} A review of the record convinces us that the State’s evidence, taken in its

entirety, was sufficient to sustain Sims’ convictions for menacing and telephone harassment.

 R.C. 2903.22, defines menacing as “knowingly [causing] another to believe that the

offender will cause physical harm to the person or property of the other person, ***.” R.C.

2917.21(A)(5) provides that “no person shall knowingly make or cause to be made a

telecommunication, ***, if the caller *** (5) knowingly makes the communication to the

recipient of the telecommunication, to another person at the premises to which the

telecommunication is made, or to those premises, and the recipient or another person at

those premises previously has told the caller not to make a telecommunication to those

premises or to any persons at those premises.”

       {¶ 12} Upon review, it clear that the State adduced sufficient evidence at trial
                                                                                               6

which established the following: (1) that Sims participated in two harassing voicemails to

the victim’s telephone; (2) that Sims called the victim numerous times after being told

repeatedly not to call anymore; (3) that Sims threatened to come to the victim’s house; (4)

that Sims had threatened the victim in the past; (4) that Sims did, in fact, drive by the

victim’s residence after threatening to do so; and (5) that the victim did not feel safe in her

house and subsequently left her home to hide from Sims. Accordingly, the trial court did

not err when it overruled Sims’ Crim. R. 29(A) motion for acquittal made at the close of the

State’s case as the evidence presented was sufficient to support her convictions.

       {¶ 13} Lastly, Sims’ conviction is not against the manifest weight of the evidence.

The credibility of the witnesses and the weight to be given their testimony were matters for

the court to resolve.    Although Sims testified at trial on her own behalf, her defense

consisted of allegations that the victim was simply lying and out to get her. The trial court

did not lose its way simply because it chose to believe the testimony of the victim, the

State’s only witness, who testified at length regarding Sims’ aggressive and hostile behavior

towards her. Having reviewed the entire record, we cannot clearly find that the evidence

weighs heavily against a conviction, or that a manifest miscarriage of justice has occurred.

       {¶ 14} In the performance of our duty, under Anders v. California, to conduct an

independent review of the record, we have found no potential assignments of error having

arguable merit. We conclude that this appeal is wholly frivolous. Therefore, the judgment of

the trial court is Affirmed.

                                         ..........

FAIN, J. and HALL, J., concur.
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Copies mailed to:

Stephanie Cook
Joshua M. Kin
Brandi Sims
Hon. Daniel G. Gehres
