[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.