State v. Bilder

• Decision Date: 30 December 1994
• Docket Number: No. 16754,16754
• Parties: The STATE of Ohio , Appellee, v. BILDER, Appellant. *
• Court: Ohio Court of Appeals

Page 653

99 Ohio App.3d 653

651 N.E.2d 502

The STATE of Ohio [City of Akron], Appellee, v. BILDER, Appellant. ^*

No. 16754.

Court of Appeals of Ohio Ninth District, Summit County.

Decided Dec. 30, 1994.

Max Rothal, Law Director, and Tracy Simms, Asst. Law Director, Akron, for appellee.

Edward A. Dark, Akron, for appellant.

PER CURIAM.

Defendant Rudolph Bilder has appealed from his conviction of menacing by stalking. He argues (1) that the trial court received improper other acts evidence; (2) that the trial court incorrectly failed to instruct the jury regarding the definition of the phrase "closely related in time" as used in the ordinance pursuant to which he was prosecuted; (3) that the trial court incorrectly permitted references to his involvement in prior criminal activity; (4) that the ordinance pursuant to which he was prosecuted is unconstitutional; and (5) that the state failed to present sufficient evidence that he caused his alleged victim to suffer mental distress to support the judgment against him. This court affirms defendant's conviction because (1) the trial court did not err by receiving evidence of other acts in which defendant had engaged; (2) the phrase "closely related in time" did not need to be defined for the jury; (3) most of the claimed references to defendant's involvement in prior criminal activity were, at best, obscure, and the trial court sustained defendant's objection to the only reference that could have come close to improperly influencing the jury; (4) Akron City Code 135.09 is not unconstitutional as applied in this case; and (5) there was sufficient evidence before the jury to support its conclusion that defendant's victim suffered mental distress.

I

Defendant was accused of menacing Ronald Smith, a Summit County probation officer, in violation of Akron City Code 135.09:

"[Defendant] at the City of Akron, Summit County, Ohio on the 22ND day of DECEMBER, 1993 DID, knowingly engage in a pattern of conduct which caused * * * RONALD SMITH to believe that [defendant] would cause physical harm to, or caused mental distress to the said RONALD SMITH * * *."

He was tried before a jury in the Akron Municipal Court commencing March 17, 1994.

The city presented evidence that defendant had harassed Smith several times between October 1992 and December 1993. The incidents allegedly occurred at or around the Summit County Courthouse, Smith's place of employment. Generally, defendant would call Smith derogatory names and make obscene gestures at him. Smith testified, however, that defendant's verbal harassment escalated into a physical confrontation on December 22, 1993:

"I was exiting the Courthouse and [defendant] was standing right inside of the entrance door. It's a very small confined space. If you're exiting and entering at the same time, you almost brush shoulders. * * * This is probably only the second time I had a real, real close encounter with [defendant]. Almost a face-to-face type of thing.

"I get right to the exit door. [Defendant] says, 'Hey, Shitty Smitty. That is your name, isn't it? Shitty?' I turned to [him] and I said, 'Rudy, I don't want to have any conversation with you. You keep bothering me, I'm going to press charges against you.'

"At that instant, I'm standing there and he strikes out at me and says, 'Fuck you, Shitty.' I go back and he strikes me in the chest. I have a file. I'm right-handed. I have a file in my right hand. I'm partly against the door.

"When I go back I instantly swing grazing him on the chin. [Defendant] goes back against the counter. He says, 'Is that all you got? You missed me, Shitty. Let's go outside.' "

Smith testified that he left the courthouse after the confrontation and that defendant followed him while he walked toward his car.

Smith also testified that defendant confronted him at the probation office in the courthouse six days later:

"I was walking within the Probation Department. Walking up to the front desk, which we often do to check our mail box and stuff. [Defendant] is standing there. I just looked over. He's standing in the doorway. He says, 'How's your hand, shitty?' I said, 'Rudy, I don't wish to have any conversation with you.' His response is, 'Conversation, hell. You don't know what a conversation is, asshole.' By that time the secretary got out of her chair and walked around the counter and escorted him out of the Probation Department. Then I came out and made a police report."

The jury found defendant guilty, and the trial court sentenced him to ninety days in jail, sixty days of which it suspended on the condition that he have no further contact with Smith. He timely appealed to this court.

II

A

Defendant's first assignment of error is that the trial court received improper other acts evidence. Specifically, he has asserted that he was "denied a fair trial in that testimony of events over a period of many months was presented for the jury's consideration, yet the offense was alleged to have occurred in December, 1993."

Akron City Code 135.09(A) provides:

"No person by engaging in a pattern of conduct shall knowingly cause another to believe that the offender will cause physical harm to the other person or cause mental distress to the other person."

Section 135.09(C)(1) defines a "pattern of conduct" as "two or more actions or incidents closely related in time, whether or not there has been a prior conviction based on any of those actions or incidents."

There was evidence before the jury from which it could find that defendant engaged in actions aimed at causing Smith mental distress on December 22, 1993 and December 28, 1993. The evidence of those two incidents supplied the elements of the crime defendant was accused of committing. There was also evidence before the jury, however, regarding a number of other confrontations between defendant and Smith during the period between October 1992 and December 1993. Defendant's assignment of error is addressed to that evidence of other acts.

Evid.R. 404(B) provides for admission of other acts evidence for a number of purposes, including showing motive or intent, while excluding such evidence when it is offered for the purpose of proving a person's character "in order to show that he acted in conformity therewith." Other acts evidence can be particularly useful in prosecutions for menacing by stalking because it can assist the jury in understanding that a defendant's otherwise innocent appearing acts, when put into the context of previous contacts he has had with the victim, may be knowing attempts to cause mental distress. For example, in State v. Woodgeard (Apr. 29, 1994), Fairfield App. No. 45-CA-SEP-1993, unreported, 1994 WL 167928, the Fifth District Court of Appeals affirmed a judgment of a trial court in a menacing-by-stalking case in which the pattern of conduct for which defendant was prosecuted was twice driving by his victim's home and driving in her neighborhood a third time. The court of appeals held that the trial court did not err by receiving evidence that the defendant had previously assaulted the victim, had followed her, and had placed numerous harassing telephone calls to her. These past contacts between the defendant and his victim supplied the context from which it became clear that what otherwise appeared to be an innocent act, driving in the victim's neighborhood, was actually knowingly causing the victim mental distress.

Despite the words used by defendant in his assignment of error, that he "was denied a fair trial in that testimony of events over a period of many months was presented for the jury's consideration, * * * " his argument in support of that assignment does not appear to be that such other acts evidence was not admissible. Rather, he appears to have argued that the jury may have been misled into convicting him based on the incidents that occurred prior to December 1993 instead of doing so based only on the two incidents that occurred during that month.

Defendant has claimed that he requested the trial court to provide the jury a limiting instruction regarding its consideration of the other acts evidence that was before it. He concedes, however, that no such request appears in the record. As the appellant, defendant is required to provide this court with a transcript of the proceedings that occurred in the trial court that is adequate for a determination of his assigned error. Bank One, N.A. v. Hill (Feb. 9, 1994), Wayne App. No. 2796, unreported, 1994 WL 45731, at 5. Accordingly, this court must view defendant's argument as one that was not brought to the attention of the trial court. In the absence of plain error, an appellate court need not consider an error which a party complaining of the trial court's judgment could have called, but did not call, to the trial court's attention at a time when such error could have been avoided or corrected by the trial court. State v. Williams (1977), 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364, paragraph one of the syllabus, vacated in part on other grounds (1978), 438 U.S. 911, 98 S.Ct. 3137, 57 L.Ed.2d 1156. The trial court did not commit plain error in not providing the limiting instruction defendant has asserted should have been provided. The trial court properly instructed the jury that, before it could find defendant guilty, it had to find, beyond a reasonable doubt, that he had engaged in a pattern of conduct "on or about December of 1993" that knowingly caused Smith to believe that he would cause him physical harm or caused him mental distress. The absence of the limiting instruction that defendant has argued should have been provided does not present the type of exceptional circumstances that would cause this court to conclude that defendant's conviction was a manifest miscarriage of justice. See State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, paragraph three of the syllabus. Accordingly, defendant's first assignment of error is...