[Cite as State v. Patterson,
2023-Ohio-3579.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Craig R. Baldwin, J.
-vsCase No. 2023CA00027
KENNETH LEROY PATTERSON
Defendant-Appellant OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Stark County Court of
Common Pleas, Case No. 2022CR2527
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 2, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KYLE L. STONE BERNARD HUNT
Prosecuting Attorney 2395 McGinty Road, N.W.
Stark County, Ohio North Canton, Ohio 44720
VICKI L. DESANTIS
Assistant Prosecuting Attorney
Appellate Division
110 Central Plaza South – Suite #510
Canton, Ohio 44702-1413
Stark County, Case No. 2023CA00027 2
Hoffman, J.
{¶1} Defendant-appellant Kenneth L. Patterson appeals his conviction and
sentenced entered by the Stark County Court of Common Pleas, on one count of violating
a protection order, following a jury trial. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE CASE AND FACTS
{¶2} On November 18, 2022, complaints were filed in the Canton Municipal
Court, charging Appellant with felonious assault, in violation of R.C. 2903.11(A), a felony
of the second degree; disrupting public services, in violation of R.C. 2909.04(A)(1), a
felony of the fourth degree; and domestic violence, in violation of R.C. 2919.25(A), a
felony of the fourth degree. Appellant appeared before the municipal court for
arraignment on the same day, and entered a plea of not guilty to the charges. The
municipal court issued a temporary protection order. On November 30, 2022, the
municipal court ordered the matter be bound over to the Stark County Grand Jury.
{¶3} On January 6, 2023, the Stark County Grand Jury indicted Appellant on one
count of domestic violence, in violation of R.C. 2919.25(A) and (D)(3), a felony of the
fourth degree; one count of disrupting public services, in violation of R.C. 2909.04(A)(1)
and (C), a felony of the fourth degree; and violating a protection order, in violation of R.C.
2919.27(A)(1) and (B)(2), a misdemeanor of the first degree. Appellant appeared before
the trial court on January 13, 2023, and entered a plea of not guilty to the Indictment.
{¶4} The trial court appointed Attorney Anthony Wise to represent Appellant.
The matter was scheduled for trial on February 8, 2023. The trial court conducted a pre-
trial hearing on January 30, 2023, and a final pre-trial hearing on February 7, 2023. On
February 7, 2023, Attorney Wise filed a motion to withdraw as counsel. Via Judgment
Entry filed February 8, 2023, the trial court denied the motion.
Stark County, Case No. 2023CA00027 3
{¶5} The matter proceeded to trial as scheduled. The following evidence was
adduced at trial:
{¶6} Louisville Police Officer Ellie Smith testified she and Lieutenant Brandon
Allensworth responded to 233 Kennedy Street, Louisville, Stark County, Ohio, at
approximately 6:20 p.m. on November 17, 2022, after a 911 hang up call. Upon their
arrival, the officers spoke with M.F., who indicated everything was fine. Officer Smith
stated she and Lt. Allensworth could tell, based upon M.F.’s facial expressions, “that
everything was not fine.” Transcript of February 8, 2023 Proceedings, Vol. I, at p. 104.
The officers entered the residence and separated Appellant and M.F. Office Smith spoke
with Appellant who explained he and M.F. had an argument after she looked at his phone
and saw text messages she did not like. Appellant denied becoming physical with M.F.
{¶7} After speaking with Appellant, Officer Smith conferred with Lt. Allensworth,
who stated M.F. had revealed a different version of the events. The officers determined
it was a domestic violence situation. M.F. told the officers Appellant had struck her wrist
with a wooden ruler and, as she was attempting to call 911, Appellant grabbed the phone
and hung up. Officer Smith noted bruising on M.F.’s wrist and swelling under one of her
eyes. M.F. informed the officers Appellant had threatened her with a knife and disclosed
she had suicidal ideations. The officers took Appellant into custody and transported him
to Louisville Police Department for booking.
{¶8} Lieutenant Brandon Allensworth testified he and Officer Smith made contact
with M.F. upon arriving at 233 Kennedy Street. Lt. Allensworth recalled initially M.F.
appeared nervous and was reluctant to speak with him and Officer Smith. M.F. ultimately
agreed to speak with the officers and invited them into the residence. After Appellant and
Stark County, Case No. 2023CA00027 4
M.F. were separated, M.F. revealed she and Appellant had been arguing and Appellant
hit her left wrist with a yardstick. Lt. Allensworth noticed significant swelling and bruising
on M.F.’s wrist. M.F. further disclosed Appellant had beaten her over the course of three
days and had threatened her with a knife that particular day.
{¶9} Lt. Allensworth was familiar with Appellant and M.F. from an incident in July,
2020. After listening to several phone calls placed by Appellant from the jail, Lt.
Allensworth stated he recognized both Appellant and M.F.’s voices. Appellant addressed
M.F. as his daughter in some of the calls, however, Lt. Allensworth indicated the female
voice was that of M.F. The state played five (5) redacted jail calls for the jury. Lt.
Allensworth identified Appellant and M.F.’s voices on all five (5) calls.
{¶10} Officer Smith and Lt. Allensworth assisted M.F. in obtaining a temporary
protection order. The petition was granted by the Canton Municipal Court on November
18, 2022. When Officer Smith spoke with M.F. on November 18, 2022, M.F. stated she
had received calls from Appellant and his mother.
{¶11} Marianne Martin, supervisor for the Canton Municipal Court, identified a
certified copy of the November 18, 2022 temporary protection order related to M.F. and
Appellant, admitted as State’s Exhibit 5 (“TPO”). The TPO ordered Appellant to have no
contact with M.F. Martin stated Appellant received, and signed he had received, a copy
of the TPO. Martin further noted Appellant waived a hearing on the TPO.
{¶12} Michael Waltz, a corrections officer with the Stark County Sheriff’s Office,
testified he works in the Inmate Services Department, overseeing, inter alia, visits, phone
calls, and the commissary. Deputy Waltz explained how inmates place phone calls from
the jail. Inmates utilize a PIN number to make calls. The PIN number is a combination
Stark County, Case No. 2023CA00027 5
of an inmate’s jail identification number and a four-digit passcode created by the inmate.
The phone system used by the jail, the ICS Enforcer, digitally stores phone calls. Calls
can be searched by name, phone number, and PIN numbers, as well as by time periods.
Deputy Waltz conducted an ICS Enforcer search for the time period between November
18, and December 27, 2022, and found Appellant placed 341 calls or attempted calls to
M.F.’s phone number. An ICS Enforcer search for the time period between November
18, 2022, and February 7, 2023, revealed Appellant placed a total of 1,237 calls to M.F.’s
phone number.
{¶13} After hearing all the evidence and deliberating, the jury found Appellant not
guilty on Counts One and Two, domestic violence and disrupting public services, but
found him guilty on Count Three, violating a protection order. The trial court sentenced
Appellant to six (6) months in the Stark County Jail.
{¶14} It is from this conviction and sentence Appellant appeals, raising the
following assignments of error:
I. THE TRIAL COURT VIOLATED APPELLANT’S
CONSTITUTIONAL SIXTH AMENDMENT RIGHT TO CONFRONT
WITNESSES AGAINST HIM.
II. THE TRIAL COURT ERRED IN ALLOWING THE STATE TO
PLAY THE JAIL PHONE CALLS BECAUSE THEY WERE NOT
PROPERLY AUTHENTICATED.
III. THE TRIAL COURT ERRED AND DEPRIVED APPELLANT OF
HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF
Stark County, Case No. 2023CA00027 6
COUNSEL BY DENYING TRIAL COUNT’S MOTION TO WITHDRAW AS
COUNSEL OF RECORD.
IV. THE TRIAL COURT ERRED AND DEPRIVED APPELLANT OF
DUE PROCESS OF LAW, AS HIS CONVICTION OF VIOLATING A
PROTECTION ORDER WAS NOT SUPPORTED BY LEGALLY
SUFFICIENT EVIDENCE.
V. APPELLANT’S CONVICTION OF VIOLATION OF A
PROTECTION ORDER WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
I
{¶15} In his first assignment of error, Appellant contends the trial court violated
his right to confront witnesses against him under the Sixth and Fourteenth Amendments
to the United States Constitution and Ohio Constitution, Article I, Section 10.
{¶16} Forfeiture by wrongdoing is an equitable exception to a defendant's
constitutional right to confront the witnesses against him. State v. McKelton, 148 Ohio
St.3d 261,
2016-Ohio-5735,
70 N.E.3d 508, ¶ 96 (Citations omitted). Codified under
Evid.R. 804(B)(6), the doctrine of forfeiture by wrongdoing permits the state to use
hearsay statements of an unavailable witness if the state can show, by a preponderance
of the evidence: “(1) the defendant engaged in wrongdoing that caused the witness to be
unavailable and (2) one purpose for the wrongdoing was to make the witness unavailable
to testify.”
Id. (Citation and internal quotations omitted). See, also, State v. Hand,
107
Ohio St.3d 378,
2006-Ohio-18,
840 N.E.2d 151, ¶ 84. The state need only show the
Stark County, Case No. 2023CA00027 7
defendant's wrongdoing, which caused the witness's unavailability, “was motivated in part
by a desire to silence the witness.” Id., at ¶¶ 84, 90. A preponderance of the evidence
means “the existence of the fact sought to be proved is more likely than its nonexistence.”
State ex rel. Doner v. Zody,
130 Ohio St.3d 446,
2011-Ohio-6117,
958 N.E.2d 1235, ¶
54.
{¶17} Our standard of review of evidentiary rulings implicating the Confrontation
Clause is de novo. McKelton, supra at ¶ 97 (Citation omitted).
{¶18} Outside the presence of the jury, the trial court heard the state’s motion for
forfeiture by wrongdoing. The prosecutor advised the trial court of the attempts made to
ensure M.F.’s cooperation with the prosecution. The prosecutor and an investigator
presented at M.F.’s home, but no one answered the door. The prosecutor left a copy of
the subpoena along with a note and her business card. M.F. was subpoenaed for the
Grand Jury and the victim witness staff had repeatedly tried to contact her. The victim
advocate left six (6) voicemail messages on M.F.’s phone regarding the Grand Jury, the
indictment, the arraignment date, and the trial date. The victim advocate also sent two
letters to M.F. The trial court listened to jail phone calls Appellant placed to M.F.
Appellant objected, arguing there were no threats made, no intimidation, and no coercion.
{¶19} In granting the state’s motion forfeiture by wrongdoing, the trial court noted:
The comments I heard yesterday were, in my – I guess I’ve viewed
them differently than defense counsel. To me, I wrote down, I don’t know
how many times, they can’t convict me if your mother doesn’t show up. And
by “mother” it’s my understanding that was like the code for the victim so
Stark County, Case No. 2023CA00027 8
that they were concerned about the telephone call. I’m a wreck. Your
mother does this shit on purpose. And to me other inappropriate comments
which to me were an attempt to bully the victim. So I viewed it a little bit
differently.
So based on my analysis of 804(B)(6), knowing the fragile emotions
this victim was going through, the number of calls, the violation of the
protection order, and to describe [Appellant] on the tape was just simply
belligerent and it was a profanity-laced telephone call of 16 minutes. So I’ll
allow it to come in, okay?
Transcript of February 8, 2023 Proceedings, Vol. I at pp. 169-170.
{¶20} Upon review of the evidence presented by the state in support of its motion
for forfeiture by wrongdoing, we conclude the evidence presented, the accompanying
surrounding facts and circumstances, and the available rational inferences drawn
therefrom, demonstrate, by a preponderance of the evidence, Appellant engaged in
wrongdoing and such wrongdoing caused M.F. to be unavailable and such wrongdoing
was done with the purpose of preventing M.F. from testifying. Accordingly, we find the
trial court did not violate Appellant’s constitutional right to confront witnesses against him.
{¶21} Appellant’s first assignment of error is overruled.
II
{¶22} In his second assignment of error, Appellant submits the trial court erred in
allowing the state to play the jail phone calls as such were not properly authenticated.
Stark County, Case No. 2023CA00027 9
{¶23} “Ordinarily, a trial court is vested with broad discretion in determining the
admissibility of evidence in any particular case, so long as such discretion is exercised in
line with the rules of procedure and evidence.” State v. Romy, 5th Dist., 2021-Ohio-501,
168 N.E.3d 86, ¶ 49 (Citation omitted). The appellate court must limit its review of the trial
court's admission or exclusion of evidence to whether the trial court abused its discretion.
Id. The abuse of discretion standard is more than an error of judgment; it implies the court
ruled arbitrarily, unreasonably, or unconscionably. Blakemore v. Blakemore,
5 Ohio St.3d
217,
450 N.E.2d 1140 (1983). “When applying the abuse-of-discretion standard, a
reviewing court must not substitute its judgment for that of the trial court.” In re E.L.C.,
12th Dist. Butler No. CA2014-09-177,
2015-Ohio-2220, ¶ 16.
{¶24} Pursuant to Evid.R. 901(A), “[t]he requirement of authentication or
identification as a condition precedent to admissibility is satisfied by evidence sufficient
to support a finding that the matter in question is what its proponent claims.” Evid. R.
901(A). “In accordance with Evid.R. 901(B)(1), the requirement of authentication or
identification can be satisfied by testimony of a witness with knowledge ‘that a matter is
what it is claimed to be.’ ” Halcomb v. Greenwood, 12th Dist. No. CA2018-03-008, 2019-
Ohio-194, ¶ 53. “Authentication or identification can also be satisfied through voice
identification under Evid.R. 901(B)(5) ‘whether heard firsthand or through mechanical or
electronic transmission or recording, by opinion based upon hearing the voice at any time
under circumstances connecting it with the alleged speaker.’ ” Id.
{¶25} “This threshold requirement for authentication of evidence is low and does
not require conclusive proof of authenticity.” State v. Lewis, 5th Dist. Delaware No. 21
CAA 03 0017, 2022-Ohio-1850, ¶ 30 (Citation omitted). “The proponent of the evidence
Stark County, Case No. 2023CA00027 10
need show only a reasonable likelihood of authenticity.”
Id. (Citation omitted).
“Circumstantial, as well as direct, evidence may be used to show authenticity.”
Id.
(Citation omitted). In other words, “[t]he authentication requirement contemplated by
Evid.R. 901(A) invokes a very low threshold standard, requiring only sufficient
foundational evidence for the trier of fact to conclude that the item is what the proponent
claims it to be.” Weisbecker v. Weisbecker, 12th Dist. Butler No. CA2005-10-421, 2006-
Ohio-5840, ¶ 22 (Citation omitted).
{¶26} At trial, the state established the recordings were what they were purported
to be based upon the standard procedures of the correctional facility. Deputy Waltz
testified as to the workings of the jail’s automatic recording system, the ICS Enforcer, and
how to retrieve specific recordings. Deputy Waltz conducted an ICS Enforcer search for
the time period between November 18, 2022, and February 7, 2023, which revealed
Appellant placed a total of 1,237 calls to M.F.’s phone number. Deputy Waltz verified
State’s Exhibit 6, a printed log of the jail calls which were kept in the ordinary course of
business. In addition, Lt. Allensworth identified the individuals on the call as Appellant
and M.F. Lt. Allensworth was familiar with Appellant’s and M.F.’s voices as he had
spoken with both of them at their residence on November 17, 2022, as well as during an
encounter in July, 2021. Lt. Allensworth also listened to a number of the recordings of
the jail calls prior to trial. At trial, Lt. Allensworth listened to the redacted jail calls during
his testimony and identified Appellant and M.F. as the speakers on the calls.
{¶27} We have listened to the five (5) jail calls admitted into evidence at trial. All
of the calls were placed to the same cell phone number. We can infer the number was
associated with a cell phone as the female who answered the calls was getting onto a
Stark County, Case No. 2023CA00027 11
bus on one occasion and was at a bank on another occasion. Such activities could not
occur with a landline. On February 3, 2023, Appellant called while the female was at a
bank. Appellant asked to speak to the teller. During the exchange between Appellant
and the teller, Appellant referred to the female as “his wife” and “M.F.” The female voice
on all of the calls belongs to the same individual.
{¶28} Based upon the foregoing, we find the trial court did not abuse its discretion
in determining the state sufficiently authenticated and identified the female voice on the
receiving end of the jail calls as belonging to M.F.
{¶29} Appellant’s second assignment of error if overruled.
III
{¶30} In his third assignment of error, Appellant argues the trial court violated his
constitutional right to the effective assistance of counsel by denying trial counsel’s motion
to withdraw.
{¶31} “An indigent defendant has no right to have a particular attorney represent
him and therefore must demonstrate ‘good cause’ to warrant substitution of counsel.”
State v. Eberhardt, 5th Dist. Richland No. 2019CA0111, 2020-Ohio-4124, ¶ 38 (Citation
omitted). “The trial court may deny the request to substitute counsel if the complaint is
unreasonable.” State v. Deal,
17 Ohio St.2d 17,
244 N.E.2d 742 (1969), syllabus. The
trial court's decision is reviewed under an abuse-of-discretion standard. State v. Cowans,
87 Ohio St.3d 68, 73,
717 N.E.2d 298 (1999). “An abuse of discretion exists where the
reasons given by the court for its action are clearly untenable, legally incorrect, or amount
to a denial of justice, or where the judgment reaches an end or purpose not justified by
reason and the evidence.”
Eberhardt, supra at ¶ 39 (Citations omitted).
Stark County, Case No. 2023CA00027 12
{¶32} “The defendant bears the burden of announcing the grounds for a motion
for appointment of new counsel. If the defendant alleges facts which, if true, would require
relief, the trial court must inquire into the defendant's complaint and make the inquiry part
of the record.” State v. Carter, 128 Ohio App.3d 419, 423,
715 N.E.2d 223 (1998)
(Citations omitted). “The inquiry may be brief and minimal, but it must be made.”
Id.
(Citations omitted). “Even that limited judicial duty arises only if the allegations are
sufficiently specific; vague or general objections do not trigger the duty to investigate
further.”
Id. (Citation omitted). “Failure to inquire into specific allegations constitutes an
error as a matter of law.”
Id.
{¶33} The trial court conducted a pre-trial hearing on January 30, 2023. The
hearing commenced with the state advising the trial court it was “the State’s
understanding [Appellant] will withdraw his formal plea of not guilty and enter a plea of
guilty to the indictment.” Transcript of January 30, 2023 Proceedings at p. 3. Attorney
Anthony Wise, counsel for Appellant, responded he had spoken with Appellant and
conveyed the state’s offer, but Appellant intended to maintain his plea of not guilty and
proceed to trial. Attorney Wise added, “I would note for the record, Your Honor, that
[Appellant] has accused me of sounding like a prosecutor and not thinking I’m working for
him in this case, Your Honor. I just want to note that for the record. Id at pp. 3-4.
Thereafter, the trial court addressed Appellant.
THE COURT: … Mr. Patterson, how are you today? Okay?
Stark County, Case No. 2023CA00027 13
[APPELLANT]: I’m doing – I was doing pretty – pretty well until that
statement. And – and now that I have that statement, I would like to have
a – an ineffective counsel. And –
…
THE COURT: You have one, I think, of the best trial lawyers here in
town. Okay? Now, you can hire whoever you want to try your case. But, I
mean, you – you can’t dictate to the Court who gets to try your case.
Now, your counsel has a tough job, because he has to tell it like it is.
And you may not like some of the things that he says. And you make [sic]
like some of the things that he said.
…
But what I’m telling you is for him to get them to come here at this
point, he’s done a heck of a job. So don’t take anything out on your lawyer,
he’s doing his job. Do you understand what I’m saying?
[APPELLANT]: Yes, I do, sir.
THE COURT: Okay. And so, are you asking the Court to set a trial
date?
[APPELLANT]: Yes, I would like that. And also, as I state before
ineffective counsel. And – and the – the – the criminal charge of domestic
violence does not apply to me, sir. Because I reside in East Cleveland,
Ohio.
…
[APPELLANT]: I been out here visiting my girlfriend.
Stark County, Case No. 2023CA00027 14
THE COURT: Okay. Well, you may be right on that. I’m not saying
you’re wrong. But what I’m saying to you is – simply is this. There’s no
ineffective assistance of counsel. He’s done what he should be doing. And
so that’s the reality.
…
…
[APPELLANT]: Can I you [sic] ask you what – what are my charges,
sir?
THE COURT: Your charges? Yeah. I’ll be happy to go over them with
you. You have a domestic violence, F4. Disrupting public service, F4. And
violating a protection order, misdemeanor of the first degree.
…
THE COURT: … your attorney did a really good job of getting an
offer of probation because it carries 36 months in prison. And I’m not forcing
you either way to do anything. I wasn’t there.
But what I’m saying to you, he’s worked very hard on the case. And
he did a good job to get the State to get to this point.
On the other hand, you have a constitutional right to have a jury trial.
…
Id. at pp. 4-7, 9-10.
{¶34} We find Appellant's statement to the trial court he did not believe defense
counsel was representing him properly did not establish good cause for the appointment
Stark County, Case No. 2023CA00027 15
of new counsel. We further find Appellant failed to allege facts which, if true, would require
the appointment of new counsel and the trial court had no duty to inquire further than it
did. See, State v. Ervin, 5th Dist. Stark No. 2000CA00297, 2001 WL 1512190.
{¶35} Appellant’s third assignment of error is overruled.
IV, V
{¶36} We elect to address Appellant’s fourth and fifth assignments of error
together. In his fourth assignment of error, Appellant argues his conviction was not
supported by sufficient evidence; therefore, the trial court erred in overruling his Crim. R.
29 motion to dismiss. In his fifth assignment of error, Appellant challenges his conviction
as against the manifest weight of the evidence.
{¶37} A Crim. R. 29(A) motion for acquittal tests the sufficiency of the evidence
presented at trial. State v. Blue, 5th Dist. Stark No. 2001CA00250, 2002–Ohio–351
(Citation omitted); State v. Miley, 114 Ohio App.3d 738, 742,
684 N.E.2d 102 (4th Dist.
1996). Crim. R. 29(A) allows a trial court to enter a judgment of acquittal when the State's
evidence is insufficient to sustain a conviction. A trial court should not sustain a Crim. R.
29 motion for acquittal unless, after viewing the evidence in a light most favorable to the
State, the court finds no rational finder of fact could find the essential elements of the
charge proven beyond a reasonable doubt. State v. Franklin, 5th Dist. Stark No. 2007–
CA–00022, 2007–Ohio–4649 at ¶ 12 (Citation omitted).
{¶38} An appellate court's function when reviewing the sufficiency of the evidence
is to determine 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
Stark County, Case No. 2023CA00027 16
proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St. 3d 259,
574 N.E.2d 492,
paragraph two of the syllabus (1991).
{¶39} 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. In determining whether a
verdict is against the manifest weight of the evidence, the appellate court acts as a
thirteenth juror and “in reviewing the entire record, weighs the evidence and all
reasonable inferences, considers the credibility of witnesses, and determines whether in
resolving conflicts in evidence the jury clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered.”
Id. at
387 (Citation and internal quotations omitted).
{¶40} Appellant was convicted of one count of violating a protection order, in
violation of R.C. 2919.27(A)(1), which provides:
(A) No person shall recklessly violate the terms of any of the
following:
(1) A protection order issued or consent agreement approved
pursuant to section 2919.26 or 3113.31 of the Revised Code.
{¶41} Appellant contends “the evidence the State presented was insufficient to
demonstrate beyond a reasonable doubt that the party Appellant spoke with on the
recorded jail phone calls was [M.F.].” Brief of Appellant at p. 17. Appellant continues,
“The State knew the number to which the calls were made, but never provided
Stark County, Case No. 2023CA00027 17
documentation regarding to whom the number belonged.” Id. Appellant submits Lt.
Allensworth’s ability to identify M.F.’s voice was “dubious.” Appellant advances the same
argument in support of his assertion his conviction was against the manifest weight of the
evidence. We disagree.
{¶42} At trial, Marianne Martin, supervisor for the Canton Municipal Court,
identified a certified copy of the T.P.O. related to M.F. and Appellant. The TPO, which
was issued on November 18, 2022, ordered Appellant to have no contact with M.F. Martin
stated Appellant received, and signed he had received, a copy of the TPO. Deputy Waltz
testified he conducted an ICS Enforcer search for the time period between November 18,
2022, and February 7, 2023, which revealed Appellant placed a total of 1,237 calls or
attempted calls to M.F.’s phone number. Deputy Waltz verified State’s Exhibit 6, a printed
log of the jail calls which were kept in the ordinary course of business. In addition, Lt.
Allensworth identified the individuals on the jail calls as Appellant and M.F. Lt.
Allensworth was familiar with Appellant’s and M.F.’s voices as he had spoken with both
of them at their residence on November 17, 2022, as well as during an encounter in July,
2021.
{¶43} Upon review of the evidence, we cannot conclude the trier of fact clearly
lost its way and created a manifest miscarriage of justice nor can we conclude there was
insufficient evidence to support Appellant’s conviction. The weight to be given to the
evidence and the credibility of the witnesses are issues for the trier of fact. State v.
DeHass, 10 Ohio St.2d 230,
227 N.E.2d 212 (1967). The jury was free to accept or reject
any or all of the evidence offered by the parties and assess the witnesses’ credibility.
Indeed, the jurors need not believe all of a witness’ testimony, but may accept only
Stark County, Case No. 2023CA00027 18
portions of it as true. State v. McGregor, 5th Dist. Ashland No. 15-COA-023, 2016-Ohio-
3082,
2016 WL 2942992. The jury clearly believed Deputy Waltz’s testimony as to the
extraordinary amount of calls/attempted calls to a phone number, which he indicated
belonged to M.F. as well as Lt. Allensworth’s voice identifications on the recorded jail
calls.
{¶44} Based upon the foregoing, we find Appellant’s conviction was based upon
sufficient evidence and was not against the manifest weight of the evidence.
{¶45} Appellant’s fourth and fifth assignments of error are overruled.
{¶46} The judgment of the Stark County Court of Common Pleas is affirmed.
By: Hoffman, J.
Gwin, P.J. and
Baldwin, J. concur
