from Marysville Municipal Court Trial Court No. 17 CRB01010
Ratliff for Appellant
Rodger for Appellee
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.
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
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).
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
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).
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
[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
[The State]: No, Your Honor.
[Defense Counsel]: No, Your Honor. Based on that, that the
actual - on the Verdict Form, the actual alternates'
[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 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
* * *
[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
[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).
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.
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.
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.
of Error No. V
trial court erred when it failed to grant appellant's
motion for acquittal after verdict.
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.).
"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 ...