[Cite as State v. Kemery, 2011-Ohio-6043.]


                  [Please see nunc pro tunc opinion at 2011-Ohio-6715.]

                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :   JUDGES:
                                             :   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                   :   Hon. Sheila G. Farmer, J.
                                             :   Hon. Patricia A. Delaney, J.
-vs-                                         :
                                             :
LEE DARREN KEMERY                            :   Case No. 11-CA-55
                                             :
        Defendant-Appellant                  :   OPINION




CHARACTER OF PROCEEDING:                         Appeal from the Municipal Court, Case
                                                 No. 10CRB02521



JUDGMENT:                                        Affirmed




DATE OF JUDGMENT:                                November 18, 2011




APPEARANCES:

For Plaintiff-Appellee                           For Defendant-Appellant

TRICIA M. MOORE                                  DAVID B. STOKES
40 West Main Street                              21 West Church Street
Newark, OH 43055                                 Suite 206
                                                 Newark, OH 43055
Licking County, Case No. 11-CA-55                                                        2




Farmer, J.

       {¶1}   On November 12, 2010, appellant, Darren Kemery, was charged with

violating a civil protection order in violation of R.C. 2919.27. The civil protection order

was issued on July 9, 2010 for the benefit of appellant's ex-wife, Danielle Rowan. On

October 23, 2010, appellant sent an email to Ms. Rowan's grandparents which included

various comments about Ms. Rowan, and encouraged the grandparents to relay the

contents of the email to her.

       {¶2}   A bench trial commenced on April 28, 2011. By judgment of conviction

filed same date, the trial court found appellant guilty and sentenced him to ninety days

in jail, eighty-seven days suspended.

       {¶3}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                             I

       {¶4}   "THE TRIAL COURT COMMITTED HARMFUL ERROR AND/OR

ABUSED ITS DISCRETION BY FINDING APPELLANT GUILTY OF THE CHARGE

HEREIN."

                                            II

       {¶5}   "THE TRIAL COURT COMMITTED HARMFUL ERROR AND/OR

ABUSED ITS DISCRETION IN DENYING APPELLANT'S TIMELY MOTION FOR

ACQUITTAL, PER O CRIM R 29(B)."

                                           I, II
Licking County, Case No. 11-CA-55                                                         3


       {¶6}   Appellant claims the trial court erred in finding him guilty of violating the

civil protection order and in denying his Crim.R. 29 motion for acquittal. We disagree.

       {¶7}   On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State

v. Jenks (1991), 61 Ohio St.3d 259. "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." Jenks at

paragraph two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307. On

review for manifest weight, a reviewing court is to examine the entire record, weigh the

evidence and all reasonable inferences, consider the credibility of witnesses and

determine "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." State v. Martin (1983), 20 Ohio App.3d 172, 175. See also, State

v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. The granting of a new trial "should be

exercised only in the exceptional case in which the evidence weighs heavily against the

conviction." Martin at 175.

       {¶8}   Crim.R. 29 governs motion for acquittal.         Subsection (A) states the

following:

       {¶9}   "The court on motion of a defendant or on its own motion, after the

evidence on either side is closed, shall order the entry of a judgment of acquittal of one

or more offenses charged in the indictment, information, or complaint, if the evidence is

insufficient to sustain a conviction of such offense or offenses. The court may not
Licking County, Case No. 11-CA-55                                                         4


reserve ruling on a motion for judgment of acquittal made at the close of the state's

case."

         {¶10} The standard to be employed by a trial court in determining a Crim.R. 29

motion is set out in State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus:

         {¶11} "Pursuant to Crim.R. 29(A), a court shall not order an entry of judgment of

acquittal if the evidence is such that reasonable minds can reach different conclusions

as to whether each material element of a crime has been proved beyond a reasonable

doubt."

         {¶12} Appellant argues the email he sent to Ms. Rowan's grandparents did not

violate the civil protection order. The complaint filed November 12, 2010 alleged the

following:

         {¶13} "One     Kemery,   Lee   D.   did   unlawfully   and   knowingly   make    a

telecommunication to a premises when the recipient of said telecommunication had

previously advised him not to make such telecommunication to the premises or

telecommunication device contrary to Section 2917.21 ORC a misdemeanor first degree

of the degree."

         {¶14} The specific terms of the civil protection order issued July 9, 2010 included

the following orders:

         {¶15} "TERMS AND CONDITIONS OF ORDER (Mark all that are applicable):

         {¶16} "01 The subject is restrained from assaulting, threatening, abusing,

harassing, following, interfering, or stalking the protected person and/or the child(ren) of

the protected person.
Licking County, Case No. 11-CA-55                                                       5


       {¶17} "04 The subject is required to stay away from the residence, property,

school, or place of employment of the protected person or other family or household

member.

       {¶18} "05 The subject is restrained from making any communication with the

protected person, including but not limited to personal, written, or telephone contact, or

their employer, employees, or fellow workers, or others with whom the communication

would be likely to cause annoyance or alarm the victim.

       {¶19} "07 The subject is prohibited from possessing an/or purchasing a firearm

or other weapon.

       {¶20} "08 See the Miscellaneous Field for comments regarding the specific

terms and conditions of this Order.

       {¶21} "Miscellaneous comments: Respondent may be within 500 feet of

Petitioner for purposes of child exchanges, so long as he has no contact with

Petitioner."

       {¶22} The October 23, 2010 email from appellant to Ms. Rowan's grandparents

included various comments about her and a threat to press contempt charges against

her. It specifically stated "[y]ou can relay this to Danielle":

       {¶23} "Well Danni has one (sic) the first battle.

       {¶24} "Lynette probably slept with this judge or slept with Steiner again and had

him talk to this dishonest judge to get this kind of decision.

       {¶25} "Danni is in contempt of court.

       {¶26} "I am to have first refusal and Danni is working.

       {¶27} "So were (sic) is my Carlee?
Licking County, Case No. 11-CA-55                                                            6


          {¶28} "She it (sic) to be with her father if her mother has to work on my days off!

          {¶29} "I am pressing contempt of court charges against Danielle, I have about

20 documented (sic) and I am fileling (sic) charges against your daughter for tampering

with documents too.

          {¶30} "Its (sic) really a shame that Danielle slept with so many guys that she

doesn't know who Vincent's father is. I'm so glad I am n***.

          {¶31} "At least she got the slut thing honestly from her mother.

          {¶32} "I feek (sic) sorry for Pat when she takes hime (sic) for all he is worth, like

her previous two husbands.

          {¶33} "You can relay this to Danielle.

          {¶34} "And I know you also don't love the grand children like you should or you

would quite (sic) smoking around them.

          {¶35} "Children's services have been notified about that and several other

things.

          {¶36} "It is by far not over!!"

          {¶37} Ms. Rowan's, grandfather, Francis Downing, testified he received the

email and forwarded it to his granddaughter. T. at 15, 17.

          {¶38} At the conclusion of the bench trial, the trial court made the following

finding:

          {¶39} "Um, the Court finds particularly important in this case, uh, the statement

you can, you can relay this to Danielle. Uh, I would agree with Mr. Stokes that if Mr.

Kemery had sent a message, basically saying Ms. Rowan is a terrible person and here

are all the reasons why and these are all the reasons why she's, uh, horrible, and I can't
Licking County, Case No. 11-CA-55                                                        7


stand her um, and nothing more, that there wouldn't be a violation here. Uh, but I think,

um, and the Court finds that his comment you can relay this to Danielle, consciously

disregarded a known risk, that Mr. Downing would forward the message along. In fact,

it almost invited him to. And while I understand the argument that the defense counsel

made regarding the differentiations between the words can and may, uh, that may goes

towards perhaps intent or maybe even knowing standard, but he certainly consciously

disregarded a known risk that Mr. Downing would forward the message along to

Danielle.   And so while I, I believe this is a technical violation, it's a violation,

nonetheless." T. at 32.

       {¶40} We concur with the trial court's analysis. There was no reason to subject

the Downings to the ramblings of the email except to convey the message to Ms.

Rowan in contravention of the mandates of the civil protection order.

       {¶41} Upon review, we find sufficient evidence to find appellant guilty of violating

the civil protection order, and no manifest miscarriage of justice.

       {¶42} Assignments of Error I and II are denied.
Licking County, Case No. 11-CA-55                                               8


      {¶43} The judgment of the Municipal Court of Licking County, Ohio is hereby

affirmed.

By Farmer, J.

Hoffman, P.J. and

Delaney, J. concur.




                                        s/ Sheila G. Farmer_____________



                                        s/ William B. Hoffman___________



                                        s/ Patricia A. Delaney_______________

                                                  JUDGES




SGF/sg 110
[Cite as State v. Kemery, 2011-Ohio-6043.]


                   IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT




STATE OF OHIO                                 :
                                              :
        Plaintiff-Appellee                    :
                                              :
-vs-                                          :        JUDGMENT ENTRY
                                              :
LEE DARREN KEMERY                             :
                                              :
        Defendant-Appellant                   :        CASE NO. 11-CA-55




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Municipal Court of Licking County, Ohio is affirmed. Costs to appellant.




                                              s/ Sheila G. Farmer_____________



                                              s/ William B. Hoffman___________



                                              s/ Patricia A. Delaney_______________

                                                       JUDGES
