[Cite as State v. Reber, 2012-Ohio-2712.]


                                        COURT OF APPEALS
                                       LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :      JUDGES:
                                               :
                                               :      Hon. Patricia A. Delaney, P.J.
                       Plaintiff-Appellee      :      Hon. William B. Hoffman, J.
                                               :      Hon. Julie A. Edwards, J.
-vs-                                           :
                                               :      Case No. 11-CA-107 & 11-CA-117
PAMELA REBER                                   :
                                               :
                                               :
                       Defendant-Appellant     :      OPINION



CHARACTER OF PROCEEDING:                           Appeal from the Licking County Court of
                                                   Common Pleas, Case No. 11-CRB-00410


JUDGMENT:                                          AFFIRMED



DATE OF JUDGMENT ENTRY:                            June 13, 2012



APPEARANCES:

For Appellant:                                        For Appellee:

ANDREW T. SANDERSON                                   TRICIA M. MOORE
21 West Church Street                                 Assistant Law Director
Suite 201                                             40 W. Main St.
Newark, OH 43055                                      Newark, OH 43055
[Cite as State v. Reber, 2012-Ohio-2712.]


Delaney, J.

        {¶1} Appellant Pamela Reber appeals from the judgment of the Licking

County Municipal Court finding her guilty of three counts of violation of a civil

protection order.

                              FACTS AND PROCEDURAL HISTORY

        {¶2} Reber and Charles Smitley have known each other for ten or eleven

years, dated on and off during that time, and were married for a little over a year and a

half. Their marriage ended on July 19, 2011, after Reber filed for divorce.

        {¶3} Prior to the divorce, however, the relationship was fraught.          Smitley

sought and obtained a civil protection order against Reber on January 27, 2011, and

the final order was filed on February 28, 2011. Reber was served with the temporary

civil protection order on January 31, 2011, and with the final civil protection order on

March 1, 2011. At trial, the parties stipulated that a valid protection order was in effect

on behalf of Smitley.

        {¶4} Reber was charged with three counts of violation of a civil protection

order pursuant to R.C. 2919.27 for three contacts with Smitley. The following facts

were adduced at the bench trial.

        {¶5} On February 11, 2011, Smitley received a text from phone number 740-

294-0498, which he recognized as Reber’s number. The text stated “Hi wanna talk?”

        {¶6} On February 14, 2011, Smitley received another text from number 294-

0498. This text contained an image of a heart with “devil’s horns” on it. It also stated

“Hope uall have nice Valentine’s Day. Confussed (sic).”
Licking County, Case No. 11-CA-107                                                      3


      {¶7} On February 24, 2011, Smitley and his friend Charles Wheeler drove to a

muffler shop. Wheeler told Smitley there was a “nut” behind them because he noticed

someone driving fast, passing another car. Smitley looked out the window and saw

Reber following them in her car, a distinctive blue Pontiac, yelling out her window.

According to Smitley, this incident happened sometime mid-day, probably between

eleven a.m. and one p.m.

      {¶8} Smitley reported each of these incidents to the police, and officers

photographed the text messages.

      {¶9} Several witnesses testified on behalf of Reber.

      {¶10} Julia Burley, her supervisor, testified Reber worked on February 24,

2011, from 10 a.m. to 6 p.m. Appellant’s work that day included taking a mental

health client to a doctor’s appointment in Columbus at 11:30 a.m. Burley stated Reber

brought back paperwork from the appointment establishing she was there. On cross-

examination, Burley stated Reber’s time sheet shows her times in and out of the

office. There is no time stamp or clock; Reber writes in her arrivals and departures.

      {¶11} Nathan Bush, Reber’s son, testified he was with his mother and one of

her clients at “KFC” on Valentine’s Day, and he didn’t see his mother call or text

anyone because she didn’t have her phone out at the restaurant. Bush did confirm

294-0948 is his mother’s telephone number.

      {¶12} Reber testified on her own behalf.         She denied texting Smitley on

February 11 and February 14. Regarding the February 24 incident, Reber stated she

picked up her client for the appointment in Columbus. She added, though, that she
Licking County, Case No. 11-CA-107                                                    4


saw Charles Wheeler that morning, by the muffler shop, and she drove by and said

“hi.” Reber denied seeing Smitley with Wheeler.

       {¶13} At the conclusion of the bench trial, the trial court found Reber guilty as

charged, noting the evidence demonstrated the text messages came from Reber’s

phone and she admitted she was outside the muffler shop on February 24. The trial

court held the state had established Reber was reckless as to being near Smitley.

The court further noted the text incidents were the least serious forms of the offense

and sentenced Reber to a fine of fifty dollars plus court costs on each count. On the

third count, for the February 24 run-in at the muffler shop, Reber received a fine of

$100 plus court costs, and 30 days in jail with all 30 suspended on the condition that

she has no further contact with Smitley.

       {¶14} Reber appeals from the judgment entry of her convictions for three

counts of violation of civil protection order.

       {¶15} Reber raises three assignments of error:

       {¶16} “I.     THE CONVICTION OF THE DEFENDANT-APPELLANT WAS

OBTAINED       WITHOUT       SUFFICIENT          EVIDENCE   BEING   PRESENTED       TO

ESTABLISH EACH AND EVERY ELEMENT OF THE ‘TEXT MESSAGE’ OFFENSES.”

       {¶17} “II.    THE CONVICTION OF THE DEFENDANT-APPELLANT WAS

OBTAINED       WITHOUT       SUFFICIENT          EVIDENCE   BEING   PRESENTED       TO

ESTABLISH EACH AND EVERY ELEMENT OF THE FEBRUARY 24, 2011

OFFENSE.”

       {¶18} “III.   THE CONVICTION OF THE DEFENDANT-APPELLANT WAS

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE PRESENTED BELOW.”
Licking County, Case No. 11-CA-107                                                     5


                                        I., II., III.

      {¶19} In her three assignments of error, appellant challenges the sufficiency

and weight of the evidence at trial.    These assignments of error will therefore be

considered together.

      {¶20} The legal concepts of sufficiency of the evidence and weight of the

evidence are both quantitatively and qualitatively different. State v. Thompkins, 78

Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The

standard of review for a challenge to the sufficiency of the evidence is set forth in

State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the

syllabus, in which the Ohio Supreme Court held, “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 guilty 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.”

      {¶21} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “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 overturned and a new trial ordered.” State v. Thompkins, supra, at

387, 678 N.E.2d 541. Reversing a conviction as being against the manifest weight of
Licking County, Case No. 11-CA-107                                                       6


the evidence and ordering a new trial should be reserved for only the “exceptional

case in which the evidence weighs heavily against the conviction.” Id.

       {¶22} We further note issues relating to the credibility of witnesses and the

weight to be given to the evidence are primarily for the trier of fact. Seasons Coal v.

Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). In the instant case, the

trier of fact was the trial court.

       {¶23} Appellant was found guilty of three counts of violation of protection order

pursuant to R.C. 2919.27(A)(1).         That section states, “No person shall recklessly

violate the terms of any of the following: [a] protection order issued * * * pursuant to

section * * * 3113.31 of the Revised Code.”              “Recklessly” is defined by R.C.

2901.22(C):

       A person acts recklessly when, with heedless indifference to the consequences,

       he perversely disregards a known risk that his conduct is likely to cause a

       certain result or is likely to be of a certain nature. A person is reckless with

       respect     to   circumstances     when,   with   heedless   indifference   to   the

       consequences, he perversely disregards a known risk that such circumstances

       are likely to exist.

       {¶24} First, Reber argues that the state presented insufficient evidence the text

messages came from Reber; she asserts further investigation should have been done,

such as calling the number to demonstrate whether Reber answered, or obtaining

“records” to show a link between Reber and the number. We disagree, and find the

state presented sufficient evidence the text messages originated from Reber. Smitley

recognized the number as Reber’s.           While Reber wants to “deal[] only with the
Licking County, Case No. 11-CA-107                                                  7


government’s case in chief and not the testimony and evidence offered by the defense

to counter the same,” we note Reber’s son testified 294-0498 was his mother’s

number and Reber herself testified the number was hers, although she claimed to

have given the phone away.

        {¶25} Reber points to the decision of the Second District Court of Appeals in

Dayton v. Glisson, 36 Ohio App.3d 159, 521 N.E.2d 853 (2nd Dist.1987), in which the

court found insufficient evidence of telephone harassment where there were two

subscribers to a line from which anonymous, silent calls were placed. In the instant

case, however, we note the context of the texts themselves relates to the relationship

between Reber and Smitley, and there was sufficient evidence the texts originated

from Reber’s phone. In other words, Reber did not successfully rebut the inference

she texted Smitley. See, State v. Thornstenson, 5th Dist. No. 92-CA-05, 1992 WL

207031 (Aug. 24, 1992), appeal dismissed, 65 Ohio St.3d 1489 (1993), at *2.

        {¶26} Reber also maintains insufficient evidence exists she was reckless with

regard to the February 24 incident. The terms of Smitley’s protection order include,

e.g.:

        ***.

        6. RESPONDENT SHALL STAY AWAY FROM PETITIONER and all other

        protected persons named in this Order and not be present within 500 feet

        (distance) of any protected persons wherever those protected persons may be

        found, or any place the Respondent knows or should know the protected

        persons are likely to be, even with Petitioner’s permission. If Respondent

        accidentally comes in contact with protected persons in any public or private
Licking County, Case No. 11-CA-107                                                     8

      place, Respondent must depart immediately. This Order includes encounters

      on public and private roads, highways, and thoroughfares. [NCIC 04]

      7. RESPONDENT SHALL NOT INITIATE OR HAVE ANY CONTACT with the

      protected persons named in this order or their residences, businesses, places

      of employment, schools, day care centers, or child care providers. Contact

      includes, but is not limited to, telephone, fax, e-mail, voice mail, delivery

      service, writings, or communications by any other means in person or through

      another person.      Respondent may not violate this order even with the

      permission of protected person. [NCIC 05]

      * * *.

      (Emphasis in original.)

We find sufficient evidence exists appellant was reckless with regard to violation of the

protection order on February 24, 2011. By Reber’s own testimony, she was present

outside the muffler shop and drove by yelling out the window.

      {¶27} Having weighed the record, we find there was sufficient evidence, if

believed by the finder of fact, to establish appellant violated the protection order on

each of the indicated dates. As a reviewing court, we will not reverse a verdict where

there is substantial evidence presented which, if believed, could reasonably convince

the finder of fact that all elements of the offense have been proven beyond a

reasonable doubt.
Licking County, Case No. 11-CA-107                                                9


      {¶28} Appellant’s three assignments of error are overruled and the judgment of

the Licking County Municipal Court is affirmed.



By: Delaney, P.J.

Hoffman, J. and

Edwards, J. concur.



                                       HON. PATRICIA A. DELANEY



                                       HON. WILLIAM B. HOFFMAN



                                       HON. JULIE A. EDWARDS
[Cite as State v. Reber, 2012-Ohio-2712.]


               IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                  :
                                               :
                                               :
                       Plaintiff-Appellee      :
                                               :
-vs-                                           :   JUDGMENT ENTRY
                                               :
PAMELA REBER                                   :
                                               :
                                               :   Case No. 11-CA-107
                       Defendant-Appellant     :




       For the reasons stated in our accompanying Opinion on file, the judgment of the

Licking County Municipal Court is affirmed. Costs assessed to Appellant.




                                             HON. PATRICIA A. DELANEY



                                             HON. WILLIAM B. HOFFMAN



                                             HON. JULIE A. EDWARDS
              IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT

STATE OF OHIO                               :
                                            :
                                            :
                    Plaintiff-Appellee      :
                                            :
-vs-                                        :   JUDGMENT ENTRY
                                            :
PAMELA REBER                                :
                                            :
                                            :   Case No. 11-CA-117
                    Defendant-Appellant     :




       For the reasons stated in our accompanying Opinion on file, the judgment of the

Licking County Municipal Court is affirmed. Costs assessed to Appellant.




                                          HON. PATRICIA A. DELANEY



                                          HON. WILLIAM B. HOFFMAN



                                          HON. JULIE A. EDWARDS
