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State v. Bellomy

Court of Appeals of Ohio, Ninth District

July 22, 2013

STATE OF OHIO Appellee
v.
KENNETH D. BELLOMY Appellant

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO CASE No. 12CR0039

APPEARANCES: SEAN BUCHANAN, Attorney at Law, for Appellant.

DEAN HOLMAN, Prosecuting Attorney, and MATTHEW A. KERN, Assistant Prosecuting Attorney, for Appellee.

DECISION AND JOURNAL ENTRY

JENNIFER HENSAL, Judge.

{¶1} Defendant-Appellant, Kenneth D. Bellomy, appeals from his conviction in the Medina County Court of Common Pleas. This Court affirms.

I.

{¶2} Kenneth D. Bellomy and M.T. dated off and on for approximately ten months. After the relationship ended in 2010, M.T. obtained a protection order against Bellomy. He was convicted of two counts of violating the protection order in 2011. On November 22, 2011, M.T. was granted a civil stalking protection order, which provided for a longer period of protection from Bellomy. The order provided in part that Bellomy was not to initiate or have any contact with M.T. via telephone.

{¶3} On January 5, 2012, Bellomy admitted to calling M.T. on her cell phone. He argues, however, that he mistakenly dialed M.T.'s telephone number when he attempted to call someone else. When M.T. answered the call, Bellomy hung up without saying anything. The call lasted three seconds. A jury convicted Bellomy of violating the civil stalking protection order, which is a fifth degree felony. The jury also found that he had a prior conviction for violation of a protection order. Bellomy was sentenced to 30 days in jail, 120 days of home incarceration with review after 60 days and five years of probation. He was also ordered not to have contact with M.T. or her family.

{¶4} Bellomy filed a motion for leave to file a delayed appeal, which was granted by this Court. He raises four assignments of error for our review. We rearrange his assignments of error to facilitate our analysis.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED BY NOT INSTRUCTING THE JURY ON MISTAKE OF FACT.

{¶5} Bellomy argues that the trial court erred when it denied his request to provide the jury with a mistake of fact instruction. His assignment of error is without merit.

{¶6} Criminal Rule 30(A) provides:

At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. * * * On appeal, a party may not assign as error the * * * failure to give any instructions unless the party objects before the jury retires to consider its verdict, stating specifically the matter objected to and the grounds of the objection.

"Generally, a request for a special jury instruction must be made in writing." State v. Yates, 9th Dist. Summit No. 21239, 2003-Ohio-2956, ¶ 18, citing State v. Franklin, 62 Ohio St.3d 118, 128 (1991).

{¶7} The record before us contains no written proposed instructions submitted by Bellomy. The transcript indicates that the trial court stated on the record that Bellomy requested a mistake of fact instruction. The court also stated on the record that Bellomy objected to its decision to exclude the proposed instruction, although his actual objection is not ...


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