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State v. Disabato

Court of Appeals of Ohio, Third District, Union

September 3, 2019


          Appeal from Marysville Municipal Court Trial Court No. 17 CRB01010

          Jeff Ratliff for Appellant

          Rick Rodger for Appellee

          PRESTON, J.

         {¶1} Defendant-appellant, Michael H. DiSabato ("DiSabato"), appeals the October 18, 2018 judgment of sentence of the Marysville Municipal Court. For the reasons that follow, we affirm in part and reverse in part.

         {¶2} On October 25, 2017, DiSabato's longtime acquaintance, Bret Adams ("Adams"), filed a report with the Dublin Police Department alleging that he had received a series of threatening phone calls and text messages from DiSabato. (See Defendant's Exs. A, B). To support his allegations, Adams produced a collection of screenshots taken from his cell phone purporting to depict some of the unwanted communications. (See State's Ex. 1); (See Defendant's Exs. E, D). These screenshots reflect that a person identified as DiSabato sent various messages in a group text message thread that included DiSabato, Adams, and another individual. (See State's Ex. 1); (See Defendant's Ex. D). These messages include statements such as "Winter is Coming" and the phrase "TicToc" followed by two rodent emojis. (Id.); (Id.). Eventually, Adams requested that DiSabato "not contact [him] any further" and indicated that he would communicate through DiSabato's attorney. (Aug. 27, 2018 Tr. at 81); (State's Ex. 1); (Defendant's Ex. E). Adams also threatened to file a police report if DiSabato continued to contact him. (Id.); (Id.); (Id.). However, DiSabato sent text messages in response to Adams's no-contact instruction, prompting Adams to issue two more warnings to DiSabato. (State's Ex. 1); (Defendant's Ex. E).

         {¶3} A criminal complaint was not filed directly in response to Adams's October 25, 2017 report. Instead, DiSabato was warned by law enforcement officers not to contact Adams further, and the Dublin prosecuting attorney sent a letter to DiSabato advising him to cease all contact with Adams. (See Defendant's Exs. A, C, P). Nevertheless, according to Adams, he continued to receive harassing communications from DiSabato. As a result, Adams insisted that charges be brought against DiSabato. (See Defendant's Exs. J, L, O, S). However, the investigating officer assigned to the case concluded that DiSabato had not violated the directives not to contact Adams and declined to "pursu[e] criminal charges unless more documentation [was] presented." (See Defendant's Exs. S, T). Thus, despite a series of increasingly acrimonious emails from Adams in which he expressed frustration that DiSabato was not being charged, the case was initially placed on inactive status on November 30, 2017. (See Defendant's Exs. A, O, S, T).

         {¶4} On December 4, 2017, Adams, pro se, filed a civil complaint in the Union County Court of Common Pleas alleging that DiSabato had defamed him by falsely stating that he "was the boyfriend of an adult film star," "practicing law without a license," and "sexually and racially harassing] a mutual acquaintance * * *." (See Defendant's Ex. Y). On December 16, 2017, DiSabato sent a series of text messages to Adams's cell phone. (State's Ex. 2); (See Defendant's Exs. V, X). DiSabato acknowledged sending the text messages, but he maintained that the messages were intended to provide Adams "with information which clearly shows that his claims in the suit he filed * * * are fabricated and delusional" and that he had to send this information directly to Adams because Adams was representing himself in the civil suit. (State's Ex. 6); (Defendant's Ex. X). After receiving these text messages, Adams immediately contacted law enforcement officials and the Dublin prosecuting attorney to request that they "take action" to stop further communications from DiSabato. (See Defendant's Ex. V).

         {¶5} On December 21, 2017, a criminal complaint was filed in the Marysville Municipal Court charging DiSabato with one count of telecommunications harassment in violation of R.C. 2917.21(A)(5), a first-degree misdemeanor. (Doc. No. 1). On February 13, 2018, DiSabato entered a written plea of not guilty. (Doc. No. 9).

         {¶6} A jury trial was held on August 27, 2018. (See Doc. Nos. 21, 40, 41). At the close of the State's case, DiSabato made a motion for acquittal under Crim.R. 29(A), which the trial court denied. (Aug. 27, 2018 Tr. at 215-220). At the close of his own case, DiSabato renewed his Crim.R. 29(A) motion for acquittal, which the trial court denied again. (Id. at 231-232). After deliberating for approximately two hours, the jury returned with its verdict, and the trial court announced that the jury had found DiSabato guilty of the single count of telecommunications harassment. (See Doc. No. 40); (Aug. 27, 2018 Tr. at 276-277, 279). At that point, the following exchange occurred:

[Trial Court]: And beneath [the printed information on the verdict form] are ten signatures because I did not excuse the two alternates. * * * [D]oes either party wish to have the jury polled?
[The State]: No, Your Honor.
[Defense Counsel]: No, Your Honor. Based on that, that the actual - on the Verdict Form, the actual alternates' signature?
[Trial Court]: The alternates did sign the Verdict Form.
[Defense Counsel]: Okay, so then the alternates deliberated, Your Honor. I think that is a violation and we do not have a good verdict of eight jurors[1] and the alternates were to not participate, so we are unaware of the ability that the alternates might have had in deliberation in affecting the group, as a whole, so I think that the Court has to declare a mistrial.
* * *
[The State]: I'm going to leave it up to the Court, Your Honor. There's still eight jurors who made a decision that it was guilty. They can raise the issue on appeal, if they wish to, but there are still eight jurors that found him guilty.
[Trial Court]: Correct. I'm going to overrule the Motion for Mistrial this afternoon.

(Aug. 27, 2018 Tr. at 276-278). Later, the trial court remarked that its "oversight" resulted in the alternate jurors' presence during jury deliberations. (Id. at 279). The trial court then stated that it "should have excused [the alternate jurors] prior to letting [the jury] begin [its] deliberations" but "failed to do that." (Id.). Finally, the trial court discharged the jury and adjourned. (Id. at 279-280). The judgment entry of conviction was filed on September 5, 2018. (Doc. No. 41).

         {¶7} On September 7, 2018, DiSabato filed a motion for a judgment of acquittal after verdict under Crim.R. 29(C) or, alternatively, for a new trial under R.C. 2945.79. (Doc. No. 43). In his motion, DiSabato argued that he was entitled to a judgment of acquittal because the State failed to present sufficient evidence as to each of the elements of telecommunications harassment under R.C. 2917.21(A)(5). (Id.). In the alternative, he argued that he was entitled to a new trial because the alternate jurors' presence during jury deliberations was an "[i]rregularity in the proceedings of the * * * jury * * * by which [he] was prevented from having a fair trial." (Id.). On October 2, 2018, the State filed its memorandum in opposition to DiSabato's motion for acquittal or for a new trial. (Doc. No. 44). On October 18, 2018, the trial court denied DiSabato's motion. (Doc. No. 46).

         {¶8} On October 18, 2018, the trial court sentenced DiSabato to 180 days in jail. (Doc. No. 45). However, the trial court suspended the entire 180-day jail sentence on condition that DiSabato successfully complete three years of probation and refrain from contacting Adams. (Id.). In addition, the trial court ordered DiSabato to pay a $1, 000 fine. (Id.).

         {¶9} On November 13, 2018, DiSabato filed a notice of appeal. (Doc. No. 52). He raises five assignments of error for our review. We consider DiSabato's assignments of error out of order. We begin by addressing DiSabato's fifth assignment of error. Then, we will address his second assignment of error. Finally, we will consider his first, third, and fourth assignments of error.

         Assignment of Error No. V

         The trial court erred when it failed to grant appellant's motion for acquittal after verdict.

         {¶10} In his fifth assignment of error, DiSabato argues that the trial court erred by denying his Crim.R. 29(C) motion for acquittal after the verdict. Specifically, DiSabato argues that R.C. 2917.21(A)(5) requires proof that the caller transmitted a telecommunication to specific premises after having been told not to send telecommunications to those particular premises. (Appellant's Brief at 19). He notes that "[t]he only argument made in opposition by the State to [his Crim.R. 29(C)] motion was that there was evidence that this alleged crime happened in Union County[, ] Ohio." (Id.). According to DiSabato, "[a]lthough the [State's] argument clarifies venue, this argument does not meet the definition of 'premises' and there is nothing on the record that could suffice." (Id.).

         {¶11} "Crim.R. 29(C) permits a trial court, upon motion, to set aside a guilty verdict and enter a judgment of acquittal." State v. Willis, 12th Dist. Butler No. CA2009-10-270, 201 ...

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