[Cite as State v. Bellamy, 2014-Ohio-5187.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2013-09-170
: OPINION
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:
CHRISTOPHER K. BELLAMY, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2013-05-0695
Michael T. Gmoser, Butler County Prosecuting Attorney, Kimberly L. McManus, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee
Fred Miller, Baden & Jones Bldg., 246 High Street, Hamilton, Ohio 45011, for defendant-
appellant
HENDRICKSON, J.
{¶ 1} Defendant-appellant, Christopher K. Bellamy, appeals from a decision in the
Butler County Court of Common Pleas convicting him of menacing by stalking and violating a
protection order. For the reasons outlined below, we affirm the decision of the trial court.
{¶ 2} Bellamy and Jenny Murray lived together as boyfriend and girlfriend for a period
of about four years from 2009 to March 2013. During this time, the couple had a son
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together. In March 2013, Murray ended the relationship, and on the same day, Murray
obtained a protection order. An indictment was later filed against Bellamy for violating a
protection order and menacing by stalking for allegedly making threatening calls to the
nursing home where Murray worked.
{¶ 3} At the beginning of a jury trial, Bellamy's counsel stated that Bellamy would
admit to violating the protection order, but that Murray was texting and emailing him during
the time the protection order was in place. Bellamy's counsel stated that the jury "will see,
and hear, messages and text messages from [Murray] that she wanted to re-establish the
relationship; that she was sorry for all the things that she had done to him, and this goes on
ad infinitum." Bellamy's counsel also stated that Murray had been sending lewd pictures of
herself to Bellamy.
{¶ 4} When Bellamy's counsel finished opening statements, the state made a motion
in limine because the texts, emails, and pictures were not provided in discovery. At this
point, the trial court ruled that because the evidence was not produced in discovery, Bellamy
could not use it as substantive evidence. The trial court stated, however, that the evidence
could be used to impeach Murray's credibility. The state then presented its case by calling
several witnesses, including Murray, Murray's coworkers, a detective with the Hamilton City
Police, and two of Bellamy's former significant others.
{¶ 5} Murray, a licensed practical nurse at a nursing home, testified that Bellamy
called her at work over a period of months. The calls began when the initial protection order
was issued and ended after Bellamy was incarcerated. The caller never identified himself
and the calls always came from an unidentified phone number. Nevertheless, Murray
testified she recognized the voice of the caller as Bellamy's, the man with whom she had
lived with the past four years.
{¶ 6} On many of the calls, the caller would state: "I want my fucking drugs. Give me
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my drugs. I'm not playing with you. Give me my fucking drugs." Murray testified that she
considered these statements as a threat and was afraid of physical harm. Additionally,
Murray testified that she personally received numerous calls to her private number from the
same caller and that her son also received calls from an unidentified caller, always asking for
drugs. Murray admitted that she voluntarily sent Bellamy text messages after the protection
order went into effect, but denied ever sending Bellamy emails. Murray also testified that she
and Bellamy met once at a Wal-Mart and spoke for approximately two hours. Murray
testified that Bellamy was manipulative and was afraid that if she did not communicate with
him, she would lose her job.
{¶ 7} Four of Murray's coworkers testified on behalf of the state. Sonia Schilling, a
coworker of Murray's and a former neighbor to both Murray and Bellamy, testified that
Bellamy frequently called the nursing home. According to Schilling, the calls occurred as
many as 30 times a night. While the caller usually did not identify himself, Schilling stated
she recognized the caller's voice as Bellamy's. The caller often stated, "tell the fat bitch to
give me my medication." The caller also threatened to put "a bomb under [their] assess" and
stated that he was going to damage cars. Schilling testified that on several occasions,
broken glass was found in the parking lot. These threats made her feel like she was in
danger of physical harm. Schilling also testified that on at least one occasion, Bellamy
identified himself and asked for Murray. According to Schilling, Bellamy also asked her to
call him from the nursing home's phone to make it look like Murray was contacting him while
she was working.
{¶ 8} Jean Jacobsen was the second coworker of Murray's to testify. Jacobsen
testified she would answer four or five calls per night over a period of a month from an
unknown caller asking for Murray, demanding drugs, and making threats. Jacobsen testified
that the caller threatened to kill both her and Murray. According to Jacobsen, the phone calls
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were disruptive to her work and caused her to fear physical harm.
{¶ 9} Miriam Houston, a third co-worker of Murray's to testify, stated that she also
answered phone calls from a person whom she believed to be Bellamy, calling from an
unknown number, asking for Murray, and demanding drugs. Houston testified that the caller
told her to "watch [her] back" and threatened to kill her. Houston stated the threats made her
a "nervous wreck" and affected her ability to work. Houston also testified that she was
"scared to death" and did not like to walk to the parking lot. Houston stated that her husband
had to come get her from work on several occasions. Houston testified that the calls only
occurred when Murray was to be at work, and when Bellamy went to jail, the calls stopped.
{¶ 10} Kristin Asher, the director of nursing at the nursing home, testified that the calls
disrupted the work environment as they tied up phone lines and distracted nurses from
providing patient care. Additionally, Asher testified that a few of the employees threatened to
resign because they were fearful of their safety. Such disruptions prompted the nursing
home to hire a security guard who was no longer needed after Bellamy was arrested.
{¶ 11} Hamilton Police Detective Paul Davis investigated threats to the employees at
the nursing home and testified on the state's behalf. During the investigation, Detective
Davis was meeting with the director of nursing at the nursing home along with several other
employees when the phone rang. The person who called was identified by the employees as
the person making threats. Within 20 minutes of the call, Detective Davis called Bellamy
from the police station and requested that Bellamy come to the station. At the station,
Bellamy denied calling the nursing home and then stated that he was just calling on behalf of
a loan company. Detective Davis testified that the voice on both calls was Bellamy's.
{¶ 12} Bellamy's ex-wife, Amanda Bellamy, and Bellamy's former girlfriend, Keli
Adkins, both testified. Amanda testified that after her relationship ended with Bellamy in
2007, she obtained a protection order against Bellamy. After obtaining the protection order,
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Bellamy contacted Amanda at her place of employment from a restricted number. Amanda
testified that Bellamy admitted to her that he had called Murray at work. Adkins testified that
after she and Bellamy broke off their relationship, Adkins obtained a protection order against
Bellamy. Despite the protection order, Bellamy would call Adkins multiple times an hour over
the course of a month and even on one occasion broke into the house where she was
working.
{¶ 13} Bellamy testified on his behalf. Bellamy admitted to violating the protection
order by speaking with Murray after the protection order was in place. Bellamy testified that
these conversations were always friendly because of his desire to see their son. Bellamy
testified that he sent nonthreatening texts and emails after the protection order went into
effect. Bellamy denied ever calling Murray at the nursing home. Bellamy also testified that
he takes medication prescribed by his doctor, but that he had no reason to call the nursing
home because he has no difficulty filling the prescriptions.
{¶ 14} At the end of the two-day trial, a jury convicted Bellamy of violating a protection
order in violation of R.C. 2919.27(A)(1) and menacing by stalking in violation of R.C.
2903.211(A)(1). The trial court sentenced Bellamy to 30 months in prison.
{¶ 15} Bellamy now appeals, asserting a single assignment of error for review:
{¶ 16} THE TRIAL COURT ERRED TO THE PREJUDICE OF [BELLAMY] WHEN IT
REFUSED TO ALLOW HIM TO CROSS-EXAMINE WITNESSES WITH CERTAIN TEXT
MESSAGES AND EMAILS, AND WHEN IT REFUSED TO ALLOW HIM TO TESTIFY
REGARDING THE CONTENTS OF THOSE TEXT MESSAGES AND EMAILS AND WHEN
IT RULED THAT THESE DOCUMENTS WERE INADMISSIBLE.
{¶ 17} Bellamy challenges the trial court's decision in preventing the admission of the
texts and emails at trial. First, Bellamy argues that the texts provided a defense to the
menacing by stalking claim because the contents of the evidence revealed friendly
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communication between Bellamy and Murray. Second, while Bellamy admits failing to
provide the texts and emails in discovery, Bellamy contends that the exclusion of the
evidence was "extreme" and the trial court should have instead granted the state a short
continuance in order to review the evidence.
{¶ 18} We review a trial court's decision to admit or exclude evidence for an abuse of
discretion. State v. Grindstaff, 12th Dist. Clermont No. CA2013-09-074, 2014-Ohio-2581, ¶
21. "A reviewing court should not disturb evidentiary decisions in the absence of an abuse of
discretion that has created material prejudice." Id., citing State v. Boles, 12th Dist. Brown No.
CA2012-06-012, 2013-Ohio-5202, ¶ 14. An abuse of discretion connotes more than an error
of law or judgment; it implies that the trial court's decision was unreasonable, arbitrary, or
unconscionable. Grindstaff at ¶ 21.
{¶ 19} Generally, relevant evidence is admissible and irrelevant evidence is
inadmissible. Evid.R. 402. Relevant evidence is defined as evidence "having any tendency
to make the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence." Evid.R. 401.
{¶ 20} In order for a trial court to err regarding the admission or exclusion of evidence
during the examination in chief pursuant to Evid.R. 103(A), two conditions must be met: "(1)
the exclusion of such evidence must affect a substantial right of the party and (2) the
substance of the excluded evidence was made known to the court by proffer or was apparent
from the context within which questions were asked." State v. Darrah, 12th Dist. Warren No.
CA2006-09-109, 2007-Ohio-7080, ¶ 18, citing State v. Gilmore, 28 Ohio St.3d 190, 191
(1986). "If a party claiming error is unable to establish the first requirement, the error is
deemed harmless. If the party is unable to establish the second requirement, the error is
deemed waived." Darrah at ¶ 18, citing Campbell v. Johnson, 87 Ohio App.3d 543, 551 (2d
Dist.1993).
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{¶ 21} In this instance, the trial court did not abuse its discretion in excluding the texts
and emails because the excluded evidence was not relevant and did not affect a substantial
right of Bellamy's. Bellamy admitted to violating the protection order, but denied that he
engaged in menacing by stalking, claiming that a third party made threating phone calls to
the nursing home where Murray worked. The menacing by stalking statute, R.C.
2903.211(A)(1), provides:
No person by engaging in a pattern of conduct shall knowingly
cause another person to believe that the offender will cause
physical harm to the other person or cause mental distress to the
other person. In addition to any other basis for the other person's
belief that the offender will cause physical harm to the other
person or the other person's mental distress, the other person's
belief or mental distress may be based on words or conduct of
the offender that are directed at or identify a corporation,
association, or other organization that employs the other person
or to which the other person belongs.
Defense counsel stated that the emails and text messages indicated that Bellamy and
Murray were communicating in a "friendly manner." However, Bellamy caused Murray and
her coworkers to be fearful of physical harm, not by emails and text messages, but through
telephone conversations. Whether Bellamy presented a friendly tone in his emails and text
messages has no relevance as to the threatening and intimidating statements he made
during the numerous telephone conversations he had with Murray and the other witnesses.
Furthermore, Murray testified that Bellamy was manipulative, so she was afraid she would
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lose her job if she did not communicate with him. She specifically testified that she took the
calls as threats and stated "I don't know what he's capable of anymore." Thus, Murray could
feel threatened by Bellamy and be fearful of him causing her physical harm while still
1. While Bellamy's argument focuses on the texts and emails showing a "friendly" relationship between Murray
and him, the texts also purport to show that Bellamy told Murray to contact the police. Bellamy was given the
opportunity to testify that a third-party made the threatening phone calls. In addition to presenting several
inadmissibility issues, any error in excluding the communication indicating a third-party was involved was
harmless, as discussed, due to the overwhelming evidence.
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engaging in friendly communication.
{¶ 22} Even if the emails and texts were relevant and the trial court erred in excluding
them as evidence, any error was harmless. See Crim.R. 52(A). The overwhelming evidence
pointed to Murray's guilt. Numerous witnesses testified that there were threating calls to the
nursing home where Murray worked which is permissible by statute as the basis for belief of
physical harm or mental distress. The evidence also established that these calls, often
occurring multiple times on the nights Murray was scheduled to work, lasted over a month.
The calls began when Murray obtained the protection order and ended when Bellamy was
arrested. Murray, Schilling, and Detective Davis all identified the voice of the caller as
Bellamy's. See Evid.R. 901(B)(5). Finally, Evid.R. 404(B) evidence was introduced revealing
that Bellamy had violated other protection orders obtained by his ex-wife and former
girlfriend. Consequently, error, if any, in excluding the texts and emails was harmless as it
did not affect a substantial right of Bellamy's.
{¶ 23} Furthermore, the trial court did not err in excluding the emails and texts due to a
discovery violation. According to Crim.R. 16(H), "[i]f the defendant serves a written demand
for discovery or any other pleading seeking disclosure of evidence on the prosecuting
attorney, a reciprocal duty of disclosure by the defendant arises without further demand by
the state." The defendant shall provide copies of "[a]ny evidence that tends to negate the
guilt of the defendant * * *." Id.
{¶ 24} If a party fails to comply with discovery requirements under Crim.R. 16, a trial
court "may order such party to permit the discovery or inspection, grant a continuance, or
prohibit the party from introducing in evidence the material not disclosed, or it may make
such other order as it deems just under the circumstances." Crim.R. 16(L). When deciding
whether to impose a sanction, a trial court must inquire into the circumstances surrounding a
discovery rule violation. State v. Wilson, 12th Dist. Butler No. CA2012-12-254, 2013-Ohio-
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3877, ¶ 16. It is within the trial court's sound discretion to decide what sanction to impose for
a discovery violation. State v. Davis, 12th Dist. Butler No. CA2010-06-143, 2011-Ohio-2207,
¶ 20.
{¶ 25} The trial court "must impose the least severe sanction that is consistent with the
purpose of the rules of discovery." State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, ¶
42, quoting City of Lakewood v. Papadelis, 32 Ohio St.3d 1 (1987), paragraph two of the
syllabus. When a defendant violates a discovery rule, imposing a sanction excluding
testimony or evidence may infringe on the defendant's Sixth Amendment right to present a
defense. Davis at ¶ 21, citing Papadelis at 5. Nevertheless, exclusion of evidence is a
permissible sanction for a criminal defendant's discovery violation as long as the exclusion
does not completely deny the defendant the constitutional right to present a defense. Davis
at ¶ 21. "Factors to be considered by the trial court include the extent to which the
prosecution will be surprised or prejudiced by the witness' testimony, the impact of witness
preclusion on the evidence at trial and the outcome of the case, whether violation of the
discovery rules was willful or in bad faith, and the effectiveness of less severe sanctions." Id.
{¶ 26} In this instance, Bellamy admits that he violated the discovery rules, but
disagrees with the severity of the sanction excluding the texts and emails from evidence.
Bellamy's counsel did not mention the texts or emails until presenting opening statements
and did not receive the evidence until the night before trial. The trial court evaluated this
information, and determined that the texts and emails should be excluded.
{¶ 27} There is little doubt that waiting until opening statements to reveal the use of
the text and email evidence was a total surprise to the prosecution. The state would have
been extremely prejudiced by the admission of this evidence as it did not have adequate time
to engage in trial preparation or strategy relating to the information contained in the texts and
emails. Although it does not appear that Bellamy willfully or in bad faith violated the
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discovery rules, it seems odd that he did not immediately bring this matter to the trial court's
attention before the trial actually started and waited until the opening statement phase of the
trial to alert the trial court of the newly discovered evidence. As a result, the trial court made
its decision after the jury had been selected and opening statements were being presented.
{¶ 28} While still within the trial court's discretion to continue the trial to accommodate
Bellamy's evidentiary request, his argument is further weakened by the effectiveness of this
less severe sanction because, as discussed above, the outcome of the trial would not have
been different. As such, the trial court did not abuse its discretion in excluding the texts and
emails from evidence. Bellamy's sole assignment of error is overruled.
{¶ 29} Judgment affirmed.
RINGLAND, P.J., and PIPER, J., concur.
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