[Cite as State v. Galindo, 2012-Ohio-3626.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :     JUDGES:
                                               :
                                               :     Hon. Patricia A. Delaney, P.J.
                       Plaintiff-Appellee      :     Hon. William B. Hoffman, J.
                                               :     Hon. Sheila G. Farmer, J.
-vs-                                           :
                                               :     Case No. 2011CA00258
MIGUEL VALENTIN GALINDO                        :
                                               :
                                               :
                       Defendant-Appellant     :     OPINION



CHARACTER OF PROCEEDING:                           Appeal from the Stark County Court of
                                                   Common Pleas, Case No. 2011CR1204


JUDGMENT:                                          AFFIRMED



DATE OF JUDGMENT ENTRY:                            August 6, 2012



APPEARANCES:

For Appellant:                                       For Appellee:

JACOB T. WILL                                        JOHN D. FERRERO, JR.
116 Cleveland Ave. NW                                STARK COUNTY PROSECUTOR
Suite 808                                            KATHLEEN O. TATARSKY
Canton, OH 44702                                     110 Central Plaza South, Suite 510
                                                     Canton, OH 44702-1413
[Cite as State v. Galindo, 2012-Ohio-3626.]


Delaney, J.

        {¶1} Appellant Miguel Valentin Galindo appeals from his conviction upon one

count of disrupting public services,1 a felony of the fourth degree. Appellee is the

state of Ohio.

                              FACTS AND PROCEDURAL HISTORY

        {¶2} Appellant and Maria Rodriguez have known each other for about seven

years and have two minor children together. Maria also has two minor children from

another relationship, N.A. and A.A. Appellant does not live at Maria’s apartment in

North Canton, but stayed there occasionally and did have a key to her apartment,

which he would use to facilitate visits with his children. Maria required appellant to call

first before he came over.

        {¶3} This case arose on August 6, 2011, when appellant showed up at the

apartment very early in the morning without advance notice. Maria testified appellant

was intoxicated and wanted to sleep with her, and became enraged when she said no.

She told him to leave.

        {¶4} A confrontation ensued at the door of the apartment.              Maria told

appellant to leave or she would call the police. They fought, pushing the door back

and forth, and Maria’s arm was struck and injured by the door. Appellant was forced

out of the apartment and then came back in through the front window. The four minor

children were in the living room and witnessed most of the incident.




1
 Appellant was also convicted of two counts of domestic violence, both misdemeanors
of the first degree. Those convictions are not at issue in this appeal.
Stark County, Case No. 2011CA00258                                                     3


       {¶5} At trial, Maria and appellant testified with the aid of Spanish-language

interpreters. Maria’s son N.A. also testified about the events inside the apartment.

       {¶6} Maria testified appellant took a phone away from her when she

attempted to call police, so she asked her son A.A. to call. Appellant then took a

phone away from A.A. Further, “He took the phone away from [A.A.], then he threw it

on the couch.    Then he took the phone, and he threw it outside.”        (T. 106-107).

Appellant left the house with Maria’s phone, and Maria and A.A. “pick[ed] up the one

that was broken. Then we went to the truck to get another phone and we put the chip

to that one so we can call the police.” (T. 107-108). Later during direct examination,

appellee clarified the issue and asked Maria how the phone was broken; Maria

responded, “When [appellant] threw it to the floor.” (T.110).

       {¶7} N.A. witnessed the incident. N.A. testified appellant took a phone away

from Maria and slapped a phone out of A.A.’s hands, breaking it.         Appellant also

punched A.A. Per N.A., once appellant left the scene, Maria and A.A. went outside to

the truck “to get a phone she bought that was supposed to be for us, but then she

found my SIM card outside that he dropped, put it in the phone and called the police.”

(T. 129).

       {¶8} Appellant testified on his own behalf. He denied hurting Maria and A.A.,

but admitted taking the phone from Maria because he didn’t want her to call police.

He further admitted upon cross examination he took a phone from Maria and threw it

down because he wanted to prevent her from calling 911.

       {¶9} Eventually A.A. did make contact with 911 and police were dispatched

for a call of an active domestic violence incident.       Ptl. Harnack arrived at the
Stark County, Case No. 2011CA00258                                                  4


apartment and discovered Maria and A.A. waiting outside; Maria had visible injury to

her right arm and A.A. had visible reddening to his left cheek. Ptl. Harnack observed

and photographed the injuries, the broken window, and curtains. He also recovered

the broken cell phone.

                              Indictment and Conviction

      {¶10} Appellant was charged by indictment with one count of aggravated

burglary [R.C. 2911.11(A)(1), a felony of the first degree], one count of disrupting

public services [R.C. 2909.04(A)(1), a felony of the fourth degree], and two counts of

domestic violence [R.C. 2919.25(A), both misdemeanors of the first degree].

Appellant entered pleas of not guilty and the case proceeded to trial by jury with the

aid of Spanish-language interpreters. Appellant was acquitted of the most serious

charge of aggravated burglary but was found guilty of disrupting public services and

two counts of domestic violence.

      {¶11} At sentencing appellee noted the existence of an I.C.E. holder which

may subject appellant to deportation. The trial court sentenced appellant to a prison

term of 14 months on the count of disrupting public services, concurrent with two

terms of six months each on the domestic violence counts.

      {¶12} Appellant now appeals from the judgment entry of conviction and

sentence of one count of disrupting public services.

      {¶13} Appellant raises one Assignment of Error:

      {¶14} “I.     THE APPELLANT’S CONVICTION FOR ONE COUNT OF

DISRUPTING PUBLIC SERVICES IN VIOLATION OF R.C. 2909.04 WAS AGAINST

THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”
Stark County, Case No. 2011CA00258                                                      5


                                            I.

       {¶15} In his sole assignment of error, appellant asserts that his conviction for

one count of disrupting public services is against the manifest weight and sufficiency

of the evidence. We disagree.

       {¶16} Appellant was charged by indictment with one count of disrupting public

services pursuant to R.C. 2909.04(A)(1), which states in pertinent part: “No person,

purposely by any means or knowingly by damaging or tampering with any property,

shall do any of the following: [i]nterrupt or impair * * * telephone * * *service* * *.”

“Telephone service” includes both the initiation and receipt of calls. State v. Brown, 97

Ohio App.3d 293, 301, 646 N.E.2d 838 (8th Dist.1994). The destruction of even a

single private telephone is enough to constitute a violation of R.C. 2909.04. See,

State v. Thomas, 2nd Dist. No. 19435, 2003-Ohio-5746.

       {¶17} The statute is aimed at conduct which prevents a victim from using public

services to seek emergency assistance. For example, where a defendant grabs the

victim’s phone and throws it into a toilet, and then removes the battery from a second

phone, such conduct “falls squarely within the types of behaviors the statute was

designed to punish: he interrupted telephone use for emergency communications.”

State v. White, 2nd Dist. No. 21795, 2007-Ohio-5671, ¶ 15.

       {¶18} Appellant asserts insufficient evidence was presented to establish the

telephone he took away from A.A. was functional and further claims no evidence

exists A.A. was attempting to use the phone when it was taken; he asserts his

conviction is unsupported by the evidence because Maria was able to use another

phone to eventually call police but no call was initiated before appellant left the scene.
Stark County, Case No. 2011CA00258                                                    6

In State v. Yoakum, we held appellee is not required to prove that an actual 911

emergency call was in progress when the telephone was disabled by the defendant

throwing it against the wall. 5th Dist. No. 01CA005, 2002-Ohio-249, at *2, citing State

v. Brown, 97 Ohio App.3d 293, 301, 646 N.E.2d 838 (8th Dist.1994).

      {¶19} Appellant infers, however, a further requirement that appellee must

establish the phone was functional before appellant destroyed it. We find no such

requirement in the statute or the case law. Moreover, both Maria and N.A. testified

appellant broke the phone they were attempting to use.           “The statute prohibits

purposeful or knowing damaging or tampering with property that interrupts or impairs

telephone service.” State v. Thomas, 2nd Dist. No. 19435, 2003-Ohio-5746, ¶ 62.

      {¶20} Ptl. Harnack testified the phone recovered from the scene that night was

broken. (T.146-147).    Appellant himself admitted he took the phone from A.A., and

took it with him, because Maria said she was going to call the police and he wanted to

prevent her from doing so. (T. 170-171). Appellant later claimed the phone he took

was not “in service” yet admitted taking the phone, again, to prevent Maria from calling

911. (T. 172-173). In short, the State established appellant committed the conduct

prohibited by R.C. 2909.04(A)(1): he took the phone from Maria, and slapped it away

from A.A., breaking it and preventing them from calling police. The victims were at

least temporarily delayed in seeking emergency assistance until they could get to the

truck outside and retrieve a working phone.

      {¶21} We have reviewed the record and are satisfied that the jury did not lose

its way in resolving any conflicts in the evidence. Appellant’s conviction for one count

of disrupting public services is supported by evidence in the record.
Stark County, Case No. 2011CA00258                               7


      {¶22} Appellant’s sole assignment of error is overruled.

By: Delaney, P.J.

Hoffman, J. and

Farmer, J. concur.



                                      HON. PATRICIA A. DELANEY



                                      HON. WILLIAM B. HOFFMAN



                                      HON. SHEILA G. FARMER




PAD:kgb
[Cite as State v. Galindo, 2012-Ohio-3626.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                   :
                                                :
                                                :
                       Plaintiff-Appellee       :
                                                :
-vs-                                            :   JUDGMENT ENTRY
                                                :
MIGUEL VALENTIN GALINDO                         :
                                                :
                                                :   Case No. 2011CA00258
                       Defendant-Appellant      :




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

Stark County Court of Common Pleas is affirmed. Costs assessed to Appellant.




                                              HON. PATRICIA A. DELANEY



                                              HON. WILLIAM B. HOFFMAN



                                              HON. SHEILA G. FARMER
