         [Cite as State v. Ham, 2017-Ohio-9189.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                     :   APPEAL NO. C-170043
                                                       TRIAL NO. 16CRB-34134
        Plaintiff-Appellee,                        :

  vs.                                              :
                                                        O P I N I O N.
CLARENCE HAM,                                      :

    Defendant-Appellant.                           :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed and Cause Remanded

Date of Judgment Entry on Appeal: December 22, 2017


Paula Boggs Muething, City Solicitor, Natalia Harris, City Prosecutor, and
Jennifer Bishop, Assistant City Prosecutor, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and David Hoffmann,
Assistant Public Defender, for Defendant-Appellant.
                 OHIO FIRST DISTRICT COURT OF APPEALS



ZAYAS, Judge.

       {¶1}   Clarence Ham appeals the judgment of the Hamilton County

Municipal Court convicting him of telecommunications harassment.                We

affirm the judgment of the trial court, but remand the cause to the trial court

for a nunc pro tunc entry to reflect that Ham was convicted of the amended

telecommunications charge.

                                    Facts

       {¶2}   Clarence    Ham     was     charged     with    one    count      of

telecommunications     harassment    in   violation   of   R.C.   2917.21(B),    a

misdemeanor of the first degree. The complaint alleged that Ham had made a

telecommunication with the purpose to threaten Kiesha Rice. The complaint

further alleged that Ham contacted Rice multiple times on her cell phone and

made threats to cause her bodily harm.

       {¶3}   Ham pled not guilty and proceeded to a bench trial. Prior to

trial, the state clarified that the harassment started on November 9, 2016 and

continued until November 20, 2016. Ham acknowledged that he was on

notice that the alleged harassment continued over that period of time, and

that the state intended to prove that Ham continued to contact Rice after

being asked to stop.

       {¶4}   Rice was the sole witness for the state. Rice testified that she

had had a relationship with Clarence Ham, whom she initially knew as Mike

Cottman. A week before the harassment started, Ham was driving her car

and got into a car accident. Eventually, he was cited for the accident and for

fleeing the scene of the accident. Rice learned his real name during the



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                  OHIO FIRST DISTRICT COURT OF APPEALS



investigation into the car accident. When Ham learned of the charges he was

facing, he repeatedly contacted Rice.

       {¶5}    Rice testified that she told Ham to stop calling her after

receiving multiple calls on November 9, 2016. Ham continued to contact her

until November 19, 2016.       She stated that he called her from numerous

different numbers, texted her, and contacted her through Facebook

messenger and her Facebook page. Rice testified that, during one call, Ham

threatened to kill her and her family to avoid going to jail.

       {¶6}    Rice had documented the text messages, Facebook posts, and

messages sent through Facebook messenger by taking screen shots with her

cell phone.    One of the messages, which Ham shared with her family

members, claimed she had AIDS, and they would die together. The other

message he shared included a photograph of his penis. In another message,

he threatened to shoot up a child’s birthday party.

       {¶7}    Ham repeatedly attempted to video call her through Facebook

messenger. Rice testified that she blocked his telephone number and blocked

him on Facebook, but he continued to contact her using call block and fake

numbers. She knew Ham was contacting her through these numbers based

on the content of the messages. When he continued to ignore her requests to

stop contacting her, she called the police. The communications stopped when

Ham was arrested and incarcerated.

       {¶8}    After Rice testified, the state rested, and Ham moved for an

acquittal.    The trial court denied the motion, and the defense rested and

renewed its motion for an acquittal, which was denied.



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                    OHIO FIRST DISTRICT COURT OF APPEALS



         {¶9}    The state moved to amend the complaint to conform to the

evidence.       Specifically, the state requested that the telecommunications

harassment charge be amended to reflect a violation of R.C. 2917.21(A)(5),

which prohibits a person from continuing to make telecommunications after

the recipient has told the caller to stop, instead of the (B) section, which

prohibits a person from making a telecommunication with purpose to abuse,

threaten, or harass another person. Ham objected, arguing that the city

should be required to proceed under the (B) section because all of the

evidence had been submitted. The court granted the motion.

         {¶10} The trial court found Ham guilty. In reaching its decision, the

court found that Ham had threatened to kill Rice and her family and harassed

her by persistently contacting her.       The court further found that Ham

continued to contact Rice after she told him to stop. Finally the court found

that Rice’s testimony was “completely, totally believable.”           The court

sentenced Ham to 180 days in jail, gave him credit for the 58 days he had

served, and remitted the costs. Ham appealed raising two assignments of

error.

                     The Amendment of the Complaint

         {¶11}       In his first assignment of error, Ham argues that the trial

court abused its discretion in amending the complaint at the close of the

evidence. Specifically, Ham claims the amendment changed the substance of

the offense, preventing him from realizing the importance of the evidence

until the end of the trial. Ham further argues that the state was aware of the

additional claim before trial because the police report stated that Ham

continued to call Rice from November 9-21 after being told to stop.

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                 OHIO FIRST DISTRICT COURT OF APPEALS



       {¶12}      As relevant here, Crim.R. 7(D) provides, “The court may at

any time before, during, or after trial amend the * * * complaint * * * in

respect to any defect, imperfection, or omission in form or substance, or of

any variance with the evidence, provided no change is made in the name or

identity of the crime charged.” An amendment that changes the name or

identity of the charged offense constitutes reversible error. State v. Kates, 169

Ohio App.3d 766, 2006-Ohio-6779, 865 N.E.2d 66, ¶ 13 (10th Dist.).

       {¶13}      If the amendment does not change the name or identity of

the crime charged, then we apply an abuse-of-discretion standard to review

the trial court's decision to allow a Crim.R. 7(D) amendment. State v.

Beach, 148 Ohio App.3d 181, 2002-Ohio-2759, 772 N.E.2d 677, ¶ 23 (1st

Dist.). The term “abuse of discretion” connotes more than an error of law or

judgment; it implies that the trial court's attitude is unreasonable, arbitrary,

or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144

(1980).

       {¶14}      In order to constitute reversible error, the defendant must

show not only that the trial court abused its discretion, but also that the

amendment hampered or otherwise prejudiced the defense. Beach at ¶ 23. If

an amendment changes the substance of the complaint and the proof, the

defendant is entitled to a reasonable continuance if he was misled or

prejudiced by the variance. Crim.R. 7(D).

                               Legal Analysis

       {¶15}      Ham concedes that the amendment did not change the

name or identity of the charged offense.           The name of the offense,



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                  OHIO FIRST DISTRICT COURT OF APPEALS



telecommunications harassment, remained the same after the amendment,

and both offenses were first-degree misdemeanors.

         {¶16}    Instead, Ham argues that the trial court abused its

discretion because the amended charge relied on different facts, and Ham was

prejudiced because he did not realize the importance of those facts during the

trial.   We first note that Ham admitted that he was notified of all the

allegations against him prior to the start of trial, and that the state intended to

prove that Ham continued to contact her after being asked to stop.

Additionally, Ham did not seek a continuance, request an opportunity to

present additional evidence, or inform the trial court that he was misled or

prejudiced by the amendment. Based upon this record, we cannot conclude

that the trial court abused its discretion in amending the charge.

         {¶17}    Furthermore, the trial court specifically found that the state

proved that Ham had committed telecommunications harassment as initially

charged because he threatened and harassed Rice, and as amended, because

he continued to contact Rice after she asked him to stop. Therefore, we find

that Ham was not prejudiced by the amendment. The first assignment of

error is overruled.

                      Sufficiency and Manifest Weight

         {¶18}    In his second assignment of error, Ham argues that the

guilty finding was not supported by sufficient evidence and was contrary to

the manifest weight of the evidence.

         {¶19}    In a challenge to the sufficiency of the evidence, the

question is whether, after viewing the evidence in the light most favorable to

the state, any rational trier of fact could have found all the essential elements

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                 OHIO FIRST DISTRICT COURT OF APPEALS



of the crime proved beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d

259, 273, 574 N.E.2d 492 (1991), paragraph two of the syllabus.            When

considering a challenge to the weight of the evidence, the court must review

the entire record, weigh the evidence and all reasonable inferences, consider

the credibility of the witnesses, and determine whether, in resolving conflicts

in the evidence, the trier of fact clearly lost its way and created a manifest

miscarriage of justice. State v. Thompkins, 78 Ohio St.3d 380, 387, 678

N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d

717 (1st Dist.1983), paragraph three of the syllabus.

       {¶20} Ham contends that the evidence was insufficient and the

conviction was against the manifest weight of the evidence because the state

failed to present credible evidence that Ham contacted Rice after being told to

stop. Ham primarily argues that Rice’s testimony was not credible.

       {¶21} However, it is well settled law that matters as to the credibility

of witnesses are for the trier of fact to resolve. See State v. Railey, 2012-Ohio-

4233, 977 N.E.2d 703, ¶ 14 (1st Dist.). Here, the trial court specifically found

that Rice’s testimony was “completely, totally believable,” and her testimony

was sufficient evidence to support his telecommunications-harassment

conviction. Based upon our review of the record, we cannot say that the court

clearly lost its way and created such a manifest miscarriage of justice that we

must reverse Ham’s conviction and order a new trial. Therefore, we overrule

Ham’s second assignment of error.

                                 Conclusion

       {¶22} We note that the judgment entry of conviction does not reflect

that the charge was amended from a telecommunications-harassment

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                 OHIO FIRST DISTRICT COURT OF APPEALS



violation under R.C. 2917.21(B) to a violation under R.C. 2917.21(A)(5).

Accordingly, we affirm the judgment of the trial court. However, we remand

the cause to the trial court to issue a nunc pro tunc entry so that the judgment

entry of conviction reflects that Ham was convicted of the amended charge of

telecommunications harassment in violation of R.C. 2917.21(A)(5).

                                      Judgment affirmed and cause remanded.

MOCK, P.J., concurs.
MYERS, J., concurs in judgment only.




Please note:
       The court has recorded its own entry this date.




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