[Cite as Delaware v. Boggs, 2018-Ohio-4677.]


                                       COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


 CITY OF DELAWARE                              :   JUDGES:
                                               :
                                               :   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                     :   Hon. Patricia A. Delaney, J.
                                               :   Hon. Craig R. Baldwin, J.
 -vs-                                          :
                                               :   Case No. 18 CAC 030027
                                               :
 SEAN T. BOGGS                                 :
                                               :
                                               :
        Defendant-Appellant                    :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Delaware Municipal
                                                   Court, Case No. 17 CRB 02695



JUDGMENT:                                          AFFIRMED




DATE OF JUDGMENT ENTRY:                            November 19, 2018




APPEARANCES:

 For Plaintiff-Appellee:                           For Defendant-Appellant:

 CHRISTOPHER E. BALLARD                            ALEX J. POMERANTS
 ASSISTANT CITY PROSECUTOR                         1141 South High Street
 70 North Union Street                             Columbus, OH 43206
 Delaware, OH 43015
Delaware County, Case No. 18 CAC 03 0027                                              2



Delaney, J.

       {¶1} Defendant-Appellant Sean T. Boggs appeals the February 27, 2018

judgment entry of the Delaware Municipal Court.

                       FACTS AND PROCEDURAL HISTORY

       {¶2} On September 26, 2017 through September 27, 2017, Defendant-Appellant

Sean T. Boggs sent a series of messages to his ex-paramour, E.M. through the Facebook

Messenger application. Boggs’ messages to E.M. regarded Boggs’ desire to see the

couple’s child. E.M. responded to the messages and explained she did not want Boggs

to see their child. During the parties’ conversation through the Facebook Messenger

application, E.M. told Boggs to stop messaging her. Boggs continued to send E.M.

messages about his desire to see their child through Facebook Messenger after E.M. told

him to stop. E.M. repeatedly told Boggs to stop messaging her and threatened to call the

police. Boggs eventually ended the conversation.

       {¶3} On September 29, 2017, Boggs was charged via complaint with one count

of Telecommunications Harassment, a first-degree misdemeanor in violation of R.C.

2917.21(A)(5).

       {¶4} Boggs filed a motion to dismiss. In his motion to dismiss, he argued there

was insufficient evidence and the statute was unconstitutionally vague. The trial court

denied the motion.

       {¶5} On February 27, 2018, Boggs entered a plea of no contest to the charge on

stipulated facts:

       On September 26, 2017 through September 27, 2017, in Delaware County,

       Ohio, Defendant Sean T. Boggs sent messages to [E.M.] via the Facebook
Delaware County, Case No. 18 CAC 03 0027                                              3


      Messenger application. Attached to this motion are printouts of screen

      captures of the messages on [E.M.]’s smartphone, with pages numbered

      for clarity. As depicted in Exhibit 1, Boggs continued to send messages and

      emojis after [E.M.] messaged him to cease, including after she stopped

      responding to him on pg. 3. Boggs stated to a Delaware Police Officer on

      September 27, 2017, that he was aware that [E.M.] had told him to stop

      messaging her.

      {¶6} On February 27, 2018, the trial court accepted the no contest plea and

found Boggs guilty of violating R.C. 2917.21(A)(5). The trial court sentenced Boggs to a

suspended sentence of 180 days in jail and a $200.00 fine. He was ordered to have no

contact with E.M.

      {¶7} It is from this judgment Boggs now appeals.

                             ASSIGNMENTS OF ERROR

      {¶8} Boggs raises two Assignments of Error:

      {¶9} “I. THE OHIO REVISED CODE AS WRITTEN, O.R.C. 2917.21(A)(5), IF

APPLIED TO THIS CASE AND THE FACTS TAKEN MOST FAVORITE TO THE STATE

OF OHIO, REQUIRE A DISMISSAL OF THE CASE AS THEY DO NOT SUPPORT A

FINDING OF GUILTY.

      {¶10} “II. THE OHIO REVISED CODE AS WRITTEN, O.R.C. 2917.21(A)(5), IS

UNCONSTITUTIONAL AS BEING VAGUE AND AMBIGUOUS.”
Delaware County, Case No. 18 CAC 03 0027                                               4


                                       ANALYSIS

                         I. SUFFICIENCY OF THE EVIDENCE

      {¶11} Boggs argues in his first Assignment of Error that his conviction was not

supported by the sufficiency of the evidence. We disagree.

      {¶12} Boggs was charged with one violation of R.C. 2917.21(A)(5), which states:

      (A) No person shall knowingly make or cause to be made a

      telecommunication, or knowingly permit a telecommunication to be made

      from a telecommunications device under the person's control, to another, if

      the caller does any of the following:

      ***

      (5) Knowingly makes the telecommunication 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;

      {¶13} Boggs argues his conduct did not rise to the level of criminal harassment

and therefore the State failed to meet its burden of production under R.C. 2917.21. He

referred the trial court to State v. Ellison, 178 Ohio App.3d 734, 2008-Ohio-5282, 900

N.E.2d 228 (1st Dist.), wherein the First District Court of Appeals found the defendant’s

postings on MySpace did not meet the elements of telecommunications harassment

under R.C. 2917.21(B). R.C. 2917.21(B) provides that “[n]o person shall make or cause

to be made a telecommunication, or permit a telecommunication to be made from a
Delaware County, Case No. 18 CAC 03 0027                                                    5


telecommunications device under the person's control, with purpose to abuse, threaten,

or harass another person.” The court examined the definition of harassment and found

the State failed to establish the defendant had a specific purpose to harass.

       {¶14} In this case, Boggs was not charged with a violation of R.C. 2917.21(B).

Boggs was charged with a violation of R.C. 2917.21(A)(5), which does not require the

State to prove the defendant had a specific purpose to harass. Under R.C. 2917.21(A)(5),

the State must establish the defendant knowingly made a telecommunication to the

recipient   and   the   recipient   previously   told   the   defendant   not   to   make   a

telecommunications to the recipient.

       {¶15} Sufficiency of the evidence is a legal question dealing with whether the state

met its burden of production at trial. State v. Murphy, 5th Dist. Stark No. 2015CA00024,

2015–Ohio–5108, ¶ 13, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d

541 (1997). “Specifically, 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 evidence, if believed, would convince the average mind of the

defendant's guilt beyond a reasonable doubt.” Murphy at ¶ 15. The test for sufficiency of

the evidence raises a question of law and does not permit the court to weigh the evidence.

State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

       {¶16} 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. Murphy at ¶ 15, citing

Thompkins at 386.
Delaware County, Case No. 18 CAC 03 0027                                                     6


       {¶17} The weight to be given the evidence introduced at trial and the credibility of

the witnesses are primarily for the trier of fact to determine. State v. Thomas, 70 Ohio

St.2d 79, 434 N.E.2d 1356 (1982), syllabus. It is not the function of an appellate court to

substitute its judgment for that of the factfinder. State v. Jenks, 61 Ohio St.3d 259, 279,

574 N.E.2d 492 (1991).

       {¶18} Boggs did not provide a transcript of the February 27, 2018 proceeding

before the trial court. Since Boggs has not provided a transcript, we must presume the

regularity of the proceedings. Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 400

N.E.2d 384 (1980). Pursuant to R.C. 2937.07, “[a] plea to a misdemeanor offense of ‘no

contest’ * * * shall constitute an admission of the truth of the facts alleged in the complaint

and that the judge or magistrate may make a finding of guilty or not guilty from the

explanation of the circumstances of the offense. The stipulation of facts in this case

served as the explanation of the circumstances of the offense. Based on our review of

the stipulation of facts, we find there was sufficient evidence to support the criminal

conviction under R.C. 2917.21(A)(5). R.C. 2917.21(A)(5) prohibits a person from

continuing to make telecommunications after the recipient has told the caller to stop. In

this case, Boggs was aware that E.M. told him to stop messaging her, but he continued

to message her after she told him to stop.

       {¶19} The first Assignment of Error is overruled.

                    II. CONSTITUTIONALITY OF R.C. 2917.21(A)(5)

       {¶20} Boggs argues in his second Assignment of Error that R.C. 2917.21(A)(5) is

unconstitutionally vague and overbroad. The statute states:
Delaware County, Case No. 18 CAC 03 0027                                                 7


       (A) No person shall knowingly make or cause to be made a

       telecommunication, or knowingly permit a telecommunication to be made

       from a telecommunications device under the person's control, to another, if

       the caller does any of the following:

       (5) Knowingly makes the telecommunication 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;

Boggs contends R.C. 2917.21(A)(5) is vague and unconstitutional because the term

“premises” is not defined by the statute. In this case, Boggs utilized the Facebook

Messenger application to communicate with E.M. Boggs contends the statute does not

define “premises” and therefore does not include the internet and/or the Facebook

Messenger application as “premises.” Boggs has not provided this Court with any

authority to support his position that the lack of definition for “premises” renders R.C.

2917.21(A)(5) unconstitutionally void.

       {¶21} Legislative    enactments         are   afforded   a   strong    presumption

of constitutionality. State v. Collier (1991), 62 Ohio St.3d 267, 269, 581 N.E.2d 552. When

possible, statutes are to be construed in favor of conformity with the Ohio and United

States Constitutions. Id. A party asserting a statute is unconstitutional must prove the

statute is unconstitutional beyond a reasonable doubt. Id.
Delaware County, Case No. 18 CAC 03 0027                                                    8


       {¶22} The critical question in all cases as to void for vagueness is whether the law

affords a reasonable individual of ordinary intelligence fair notice and sufficient definition

and guidance to enable him to conform his conduct to the law. City of Norwood v. Horney,

110 Ohio St.3d 353, 380, 853 N.E.2d 1115 (2006).

       {¶23} R.C. 2917.21(A)(5) prohibits a person from continuing to make

telecommunications after the recipient has told the caller to stop. R.C. 2913.01(X) defines

“telecommunication” as “the origination, emission, dissemination, transmission, or

reception of data, images, signals, sounds, or other intelligence or equivalence of

intelligence of any nature over any communications system by any method, including, but

not limited to, a fiber optic, electronic, magnetic, optical, digital, or analog method.”

“Telecommunications device” means any instrument, equipment, machine, or other

device that facilitates telecommunication, including, but not limited to, a computer,

computer network, computer chip, computer circuit, scanner, telephone, cellular

telephone, pager, personal communications device, transponder, receiver, radio, modem,

or device that enables the use of a modem. R.C. 2913.01(Y).

       {¶24} The language of R.C. 2917.21(A)(5) and the statutory definitions of

“telecommunication” and “telecommunications device” includes a wide-variety of

telecommunications. The issue is whether R.C. 2917.21(A)(5) affords a reasonable

person of ordinary intelligence fair notice and sufficient definition and guidance that a

person is prohibited from continuing to telecommunicate with a recipient after the recipient

tells the person to stop the telecommunications. Boggs has failed to prove beyond a

reasonable doubt that the lack of definition for “premises” renders R.C. 2917.21(A)(5)

unconstitutionally void for vagueness.
Delaware County, Case No. 18 CAC 03 0027                                 9


       {¶25} The second Assignment of Error is overruled.

                                   CONCLUSION

       {¶26} The judgment of the Delaware Municipal Court is affirmed.

By: Delaney, J.,

Hoffman, P.J. and

Baldwin, J., concur.
