 [Cite as State v. Glascoe, 2013-Ohio-1368.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                  MONTGOMERY COUNTY

 STATE OF OHIO                                      :
                                                    :     Appellate Case No. 25258
         Plaintiff-Appellee                         :
                                                    :     Trial Court Case No. 12-CRB-2304
 v.                                                 :
                                                    :
 BOBBY GLASCOE                                      :     (Criminal Appeal from
                                                    :     (Dayton Municipal Court)
         Defendant-Appellant                        :
                                                    :
                                                ...........

                                                OPINION

                               Rendered on the 5th day of April, 2013.

                                                ...........

JOHN J. DANISH, Atty. Reg. #0046639, by STEPHANIE L. COOK, Atty. Reg. #0067101,
Dayton City Attorney’s Office, 335 West Third Street, Room 372, Dayton, Ohio 4502
      Attorney for Plaintiff-Appellee

DANIEL A. PERRY, Atty. Reg. # 0087548, 123 Boggs Lane, Cincinnati, Ohio 45246
     Attorney for Defendant-Appellant

                                               .............

HALL, J.

       {¶ 1}       Bobby Glascoe appeals from his conviction and sentence on one count of
recklessly violating a protection order, a first-degree misdemeanor.

        {¶ 2}         In two related assignments of error, Glascoe challenges the legal sufficiency

and manifest weight of the evidence to support his conviction.

        {¶ 3}         The record reflects that Glascoe and Jennifer Spain, the complaining

witness, previously lived together and had a child together. Following their separation, Spain

obtained a protection order against Glascoe. The order covered Spain and her child. On April

2, 2012, Glascoe was charged with two counts of recklessly violating the order. One count

alleged a violation with regard to Spain, and the other count alleged a violation with regard to

Spain’s child. The charges stemmed from an incident the prior day when Glascoe and Spain

had passed each other while walking in opposite directions in a residential neighborhood. At

that time, Glascoe and Spain appear to have resided relatively close to one another. Spain was

walking with her new boyfriend and her child. They were going to pick up a table they had

purchased from a neighborhood resident. Glascoe was walking to his job at a Subway

restaurant.

        {¶ 4}         Spain testified at trial that she recognized Glascoe as he approached. She

stated that when he got within a couple of feet of her, he said: “I don’t care if this breaks the f

* * * protection order[.] I am going to walk wherever I feel like it. And I live here on

Blackberry * * * and you can’t come down here because of the protection order. F * * * you, b

* * *.” (Trial Tr. at 17-18). Spain’s boyfriend, Joseph Stefan, testified that he heard Glascoe

say something similar. (Id. at 52). Spain and Stefan denied saying anything back to Glascoe.

(Id. at 18-19, 49).

        {¶ 5}    Glascoe’s new girlfriend, Erica Smith, testified on his behalf. Smith explained

that she works at the Subway restaurant with Glascoe. According to Smith, Glascoe arrived at
                                                                                              3


work on the day in question and mentioned that he had passed Spain. More specifically, Smith

stated: “He told me that he walked past her and that she had immediately grabbed her cell

phone and she had told him that she was calling the police and he told me that he had then told

her that he was going to be at work at Subway on Linden Avenue and that if the police wanted

to speak with him that that’s where she needed to send them.” (Id. at 72-73). The final witness

was Glascoe’s supervisor, Sharon Hammons. She confirmed that he worked on the afternoon

in question and that he often walked to work. (Id. at 78-79). Glascoe did not testify at trial.

       {¶ 6}    The trial court found Glascoe not guilty of violating the protection order

insofar as it covered Spain’s child. The trial court found Glascoe guilty of recklessly violating

the order, however, by initiating contact with Spain herself. In relevant part, the trial court

reasoned:

               * * * It was argued in the closing statement that we are only here today

       because you happened to cross paths. I have no doubt today that this was not a

       planned incident. That you[,] all of you literally ran into each other and your

       paths literally crossed. I don’t think Mr. Glascoe that was something that ever

       [was] intended. I don’t think it was something that you planned. Had you saw

       each other, passed by and went to work, I would be making a completely

       different finding today. The argument in closing argument that we are only here

        because of you crossing paths and this case would not have happened is not

       true. If you had not opened your mouth and said any word, we would not be

       here today. I find considering all the testimony[,] considering the credibility, I

       found the testimony offered by the victim and [Stefan] * * * to be credible in
                                                                                              4


        regards to they both gave consistent stories to what was stated that day. Now

        their stories were not identical in regards to the details. And to me that makes it

        even more credible that they contain the same type of language. What was not

        credible to me was that you showed up to work and said I told her I would be at

        work if she was going to call the police. So I am going to find that the State has

        presented sufficient evidence to enter a finding of guilty in regards to one count

        of violating a protection order.

(Id. at 95-97).

        {¶ 7}     On appeal, Glascoe contends his conviction is not supported by legally

sufficient evidence and is against the manifest weight of the evidence. He asserts that, on

multiple occasions, Spain had traveled in the vicinity of his residence—most notably on the

day in question when she was picking up furniture. He contends this fact demonstrates her

lack of fear. Glascoe also asserts that he was following his normal route to work and that he

was “doing everything in his power to stay away” from Spain. Under these circumstances, he

claims the State presented legally insufficient evidence to prove that he recklessly violated the

protection order. For essentially the same reasons, he argues that his conviction is against the

weight of the evidence.

        {¶ 8}     When a defendant challenges the sufficiency of the evidence, he is arguing

that the State presented inadequate evidence on an element of the offense to sustain the verdict

as a matter of law. State v. Hawn, 138 Ohio App.3d 449, 471, 741 N.E.2d 594 (2d Dist.2000).

“An appellate court’s function when reviewing the sufficiency of the evidence to support a

criminal conviction is to examine the evidence admitted at trial to determine whether such
                                                                                             5


evidence, if believed, would convince the average mind of the defendant’s guilt beyond a

reasonable doubt. 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.” State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991), paragraph two of the syllabus.

       {¶ 9}    Our analysis is different when reviewing a manifest-weight argument. When a

conviction is challenged on appeal as being against the weight of the evidence, an appellate

court must review the entire record, weigh the evidence and all reasonable inferences, consider

witness credibility, and determine whether, in resolving conflicts in the evidence, the trier of

fact “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. Thompkins, 78 Ohio St.3d 380, 387,

1997-Ohio-52, 678 N.E.2d 541. A judgment should be reversed as being against the manifest

weight of the evidence “only in the exceptional case in which the evidence weighs heavily

against the conviction.” State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st

Dist.1983).

       {¶ 10} With the foregoing standards in mind, we conclude that Glascoe’s conviction

is supported by legally sufficient evidence and is not against the weight of the evidence.

The statute at issue, R.C. 2919.27, criminalizes recklessly violating the terms of a protection

order. As applicable here, the protection order prohibited Glascoe from initiating any

“contact” with Spain. The order defined “contact” to include in-person communication by any

means. (Trial Tr. at Plaintiff’s Exhibit 1A and 1C). Contrary to Glascoe’s argument, the

testimony of Spain and Stefan supports a finding that he recklessly initiated in-person
                                                                                         6


communication with her when he made the above-quoted remarks as they passed. In its role as

trier of fact, the trial court was entitled to credit this testimony.

        {¶ 11} Having reviewed the record, we believe a rational trier of fact could have

found Glascoe guilty of recklessly violating the protection order. The evidence does not weigh

heavily against his conviction. His two assignments of error are overruled, and the judgment

of the Dayton Municipal Court is affirmed.

                                               .............

FROELICH and WELBAUM, JJ., concur.



Copies mailed to:

John J. Danish
Stephanie L. Cook
Daniel A. Perry
Hon. Christopher D. Roberts
