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State v. Birch

Court of Appeals of Ohio, Ninth District, Summit

January 15, 2020

STATE OF OHIO Appellee
v.
MICHAEL BIRCH Appellant

          APPEAL FROM JUDGMENT ENTERED IN THE BARBERTON MUNICIPAL COURT COUNTY OF SUMMIT, OHIO CASE Nos. 18CRB1067, 18CRB2201

          DAVID M. LENEGHAN AND K. SCOTT CARTER, ATTORNEYS AT LAW, FOR APPELLANT.

          MICHELLE BANBURY, ASSISTANT PROSECUTING ATTORNEY, FOR APPELLEE.

          DECISION AND JOURNAL ENTRY

          THOMAS A. TEODOSIO JUDGE

         {¶1} Defendant-Appellant, Michael Birch, appeals from his convictions in the Barberton Municipal Court. This Court affirms.

         I.

         {¶2} Mr. Birch and his ex-wife have one son and had a contentious divorce. Early on in their divorce proceedings, Mr. Birch's aunt acted as an intermediary and helped facilitate their custody exchanges. Mr. Birch soon became frustrated with her and the proceedings, however, and routinely called her to vent his frustrations. Due to the escalating frequency and nature of his calls, the aunt eventually told him to stop calling and contacted the police, who likewise told him to stop calling. The calls then ceased for a few months before resuming. Though the aunt would not answer Mr. Birch's calls, he left her voicemail messages on a regular basis. After compiling forty recorded messages, the aunt decided to press charges. Her complaint led to Mr. Birch being charged with one count of telecommunications harassment, in violation of R.C. 2917.21(A)(5).

         {¶3} Apart from the calls he made to his aunt, Mr. Birch also habitually contacted his ex-wife. The two had a court-ordered messaging application installed on their cell phones to communicate about their son, but Mr. Birch routinely contacted her in other ways as well. Specifically, he would call her, text message her directly (i.e., through her cell phone provider), and message her through another texting application. Because Mr. Birch continued to do so even after she told him not to contact her through any means other than their court-ordered messaging application, the ex-wife contacted the police to press charges. Her complaint also led to Mr. Birch being charged with one count of telecommunications harassment, in violation of R.C. 2917.21(A)(5).

         {¶4} The trial court consolidated Mr. Birch's two charges for purposes of trial. A jury found him guilty on both counts, and the court sentenced him to a fine and a period of court-ordered supervision on each count. Mr. Birch then moved for a stay of execution, and the court agreed to stay certain aspects of his sentence for purposes of his appeal.

         {¶5} Mr. Birch filed three appeals; one from each of the court's judgment entries and one that addressed both judgment entries. Upon review, this Court consolidated the three appeals for purposes of briefing, argument, and decision. Mr. Birch raises four assignments of error for our review.

         II.

         ASSIGNMENT OF ERROR ONE

         THE TRIAL COURT ERRED BY FAILING TO GRANT MR. BIRCH'S [CRIM] R. 29 MOTION FOR ACQUITTAL.

         ASSIGNMENT OF ERROR TWO

         THE JURY'S VERDICT WAS AGAINST THE SUFFICIENCY OF THE EVIDENCE IN VIOLATION OF MR. BIRCH'S CONSTITUTIONAL RIGHTS.

         {¶6} In his first assignment of error, Mr. Birch argues that the court erred when it denied his motion for acquittal. In his second assignment of error, he argues that the jury's verdicts are based on insufficient evidence. Because the same analysis can be used to resolve both assignments of error, we ...


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