[Cite as Chagrin Falls v. Ptak,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

VILLAGE OF CHAGRIN FALLS, :

Plaintiff-Appellee, : No. 109342 v. :

JUSTIN PTAK, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: December 10, 2020

Criminal Appeal from the Bedford Municipal Court Case No. 18CRB01644

Appearances:

Diemert & Associates Co., L.P.A., Thomas M. Hanculak, Village of Chagrin Falls Prosecutor; and Lauryn G. Kitchen, for appellee.

Patituce & Associates, L.L.C., Joseph C. Patituce, and Megan M. Patituce, for appellant.

MARY J. BOYLE, P.J.:

Defendant-appellant, Justin Ptak, appeals his conviction of menacing

by stalking. He raises five assignments of error for our review: 1. Appellant’s conviction for menacing by stalking is not supported by legally sufficient evidence as required by our state and federal constitution.

2. The trial court erred by allowing the admission of cell phone records without proper authentication resulting in appellant being denied his right to a fair trial as required by our state and federal constitutions.

3. The trial court erred by allowing admission of hearsay testimony regarding to whom a license plate was registered or the failure to object constituted ineffective assistance of counsel.

4. The prosecutor’s comments in closing argument constitu[t]e prosecutorial misconduct and deprived appellant of the right to a fair trial under our state and federal constitution.

5. Appellant’s conviction for menacing by stalking was against the manifest weight of the evidence in violation of our state and federal constitutions.

Finding no merit to his assignments of error, we affirm.

I. Procedural History and Factual Background

In August 2018, Ptak was charged with telecommunications

harassment in violation of R.C. 2917.21(A)(1), a first-degree misdemeanor; and

menacing by stalking in violation of R.C. 2903.211(A)(1), a first-degree

misdemeanor. In October 2019, a jury trial ensued. Plaintiff-appellee, the village of

Chagrin Falls (“Chagrin Falls”), presented the following evidence at trial.

Ptak went to high school with the victim, C.W., and the two dated in

2016. C.W. testified that she and Ptak dated for five months when she was seventeen

years old and in the eleventh grade. In the early spring of 2016, C.W. ended the

relationship because it was “overwhelming” and “emotionally demanding,” she did

things she “wasn’t comfortable” doing, and Ptak would “excessively” call and text her. C.W. testified that after she ended the relationship, Ptak continued to

“excessive[ly]” call and text her. Some of the messages were “love texts,” but others

were “angry, demeaning” messages. C.W. told Ptak not to contact her anymore, but

“he kept on doing it,” and C.W. blocked his phone number. She explained that at

some point in 2016, she and her parents contacted the Geauga County Sheriff’s

Office about Ptak because of the content and frequency of his text messages and his

refusal to stop sending them. C.W. testified that her mother was “scared” and

thought Ptak was “unstable.” The sheriff told Ptak to stop contacting C.W., and he

temporarily stopped.

In 2017, C.W. moved from Ohio to Minnesota. C.W. unblocked Ptak’s

phone number and had one “very simple back-and-forth text conversation” about a

mutual friend. But when C.W. realized that Ptak interpreted the conversation as her

romantically “advancing” on him, she blocked his phone number again. C.W.

testified that Ptak repeated a pattern of texting her from phone numbers she did not

recognize “a bunch of times” within a few days and then “stop[ping] for a little bit.”

She said that after she went to the police in 2016, Ptak stopped using his name in

the text messages. She explained that she knew the texts were from Ptak because of

the content of the messages and that the messages referred to her by names that

only Ptak called her. C.W. was dating somebody else, and she asked her boyfriend

to tell Ptak to stop contacting her. She made the same request of the housing

manager where she was living She testified that the texts temporarily stopped after

her boyfriend and housing manager reached out to Ptak, but then the messages restarted. In the summer of 2017, C.W. moved back in with her parents in Ohio, and

in early 2018 she moved into an apartment in Chagrin Falls with her boyfriend. Ptak

continued to text her from phone numbers she did not recognize. C.W. testified that

she felt “powerless, disrespected, [and] violated.”

C.W. testified that in March 2018, she received a text message that

said, “I miss you,” and, “I still have the pictures you gave me.” C.W. thought the

reference was to nude photos, became “very upset,” unblocked Ptak’s phone

number, texted him to try to get the photos back, and called him to warn him that

she would call the police if he did not return the photos. She said that Ptak

responded by sending her “the picture that he was talking about” and claiming that

he did not have any nude photos.

In May 2018, C.W.’s mother got a puppy, and C.W. posted a picture

of the puppy on social media. C.W. had blocked Ptak from her social media

accounts, but after she posted the puppy photo, C.W. received a text message from

a number she did not recognize that said it would “be a shame if something

happened” to the puppy. C.W. testified that she “kn[e]w” the text came from Ptak

but that she did not have “hard evidence.” C.W. was “really concerned” about the

text message, and her mother was “very, very scared.” Her mother contacted the

Geauga County Sheriff’s Office, which instructed C.W. how to send a cease-and-

desist letter to Ptak via certified mail. C.W. sent Ptak the letter on May 11, 2017,

instructing him not to contact her anymore and advising him that she would report

any further communication attempts to the police. C.W. received a receipt reflecting that the letter had been delivered. An employee from the U.S. Post Office in Chagrin

Falls testified that she delivered the letter to Ptak’s address on May 12, 2018. C.W.

testified that the text messages stopped “temporarily” after she sent the letter. But

soon she continued to receive messages from him. She reported the messages to the

Chagrin Falls Police Department, who told Ptak to stop contacting her.

On August 27, 2018, C.W. found a letter and roses on her car parked

in a lot across from her apartment building. The letter was signed by “Justin.” In

the letter, Ptak expressed his love for C.W., said he felt “awful” about the “terrible

things” he said to her, and asked her to not “give up” on him. C.W., her boyfriend,

and her father went to the Chagrin Falls Police Department that day to “get [Ptak]

to stop.” Sergeant Jason Fischer, a Chagrin Falls police officer, testified that he

initiated a written and video-recorded report with her. C.W. told Sergeant Fischer

that she did not think that Ptak would cause her physical harm but that she was

“freaked out” by his behavior. She testified that it was not “productive for [her] to

live [her] life catastrophizing” that he would kill her or beat her up, but that it was

“frightening” that he figured out where she lived. She explained that she never told

Ptak where she lived, and they no longer had friends in common who could have

told him. She testified that she wrote in her statement that she was “scared.” C.W.

switched cars with her mother for a few weeks, hoping that Ptak would not recognize

the car, not “mess with” her car, and not know where she was.

On the afternoon of August 28, 2018, Sergeant Fischer reached Ptak

by telephone and told him “that he was absolutely not in any way, shape, or form to contact [C.W.] from this point forward.” On August 29, around 1:00 p.m., Ptak came

to the police station with his mother, and Sergeant Fischer processed charges

against him for telecommunications harassment and menacing by stalking.

Sergeant Fischer “bonded [Ptak] out right then and there via personal bond,” and

he was released around 2:45 p.m.

Detective Andrew Capwill, a detective sergeant for the Chagrin Falls

Police Department, subpoenaed the phone records from January 1, 2018, through

September 11, 2018, for C.W.’s cell phone from Verizon and Ptak’s cell phone from

AT&T. Detective Capwill explained that the records show that Ptak called C.W. 55

times in 2018: 1 call in February, 6 in March, 14 in June, 16 in July, and 18 in August.

C.W. called Ptak once on March 2, 2018, which C.W. testified was the incident

regarding the photos. On August 27, 2019, the day that C.W. found the love letter

and roses on her car, Ptak called C.W. twice. He called her again at 11:06 a.m. on

August 28, at 2:39 a.m. on August 29 (after Sergeant Fischer instructed him to stop

contacting C.W.), and at 8:05 p.m. on August 29 (after he had been charged).

In September 2018, the trial court issued a no-contact order against

Ptak.

In February 2019, as this case was proceeding, C.W. noticed a car

following her while she was driving. The car followed her to her apartment complex

and parked when she parked. She went inside the leasing office to deposit her rent,

and the driver was still in the car that had been following her when she returned to

her car. The other car followed her out of the parking lot. She pulled over to the side of the road, and the other car also pulled over. As she continued to drive and pull

into a Panera Bread parking lot, so did the other car. C.W. observed that the driver

was a man with the hood of his sweatshirt covering his head. She suspected the

driver was Ptak and used her cell phone to take a video of the car as she walked into

Panera Bread. After a few minutes, C.W. walked back to her car holding up her

phone to make it “more obvious” that she was recording, and the other car left. C.W.

obtained the license plate and reported the incident to the Chagrin Falls police. She

said that the police ran the license plate through their database, and an officer told

her that the vehicle was registered to Ptak’s mother. Sergeant Fischer likewise

testified that on February 3, 2019, C.W. came to the station again, and he obtained

her statement about being followed. He said he viewed the video C.W. captured, ran

the license plate through the law enforcement automated data system, and

generated a report (“LEADS report”) that stated the owner of the vehicle was

Kathleen Ptak.

At the end of the state’s case, Ptak moved for a Crim.R. 29(A)

acquittal. The trial court denied the motion. Ptak did not call any witnesses.

After deliberations, the jury found Ptak guilty of menacing by stalking

but not guilty of telecommunications harassment. The trial court referred Ptak for

a presentence investigation report.

At the sentencing hearing in November 2019, the trial court

sentenced Ptak to 180 days in jail, suspended 160 of them on the condition of five

years of community control sanctions, imposed a $500 fine, and assessed court costs against Ptak. The trial court ordered that Ptak not contact C.W. and that he obtain

a mental health evaluation and comply with any recommendations. Ptak’s counsel

asked that the trial court stay execution of the sentence pending an appeal, and the

trial court denied the request.

Ptak timely appeals from the sentencing judgment. We will address

his assignments of error out of order for ease of discussion.

II. Admission of Cell Phone Records

In his second assignment of error, Ptak argues that he was denied his

right to a fair trial because the trial court improperly admitted cell phone records

without sufficient authentication. Ptak contends that (1) the records are not

business records pursuant to Evid.R. 803(6), (2) Detective Capwill did not identify

an affidavit from the records custodian from either cell phone provider, (3) C.W.

could not authenticate the records because she could not identify Ptak as the caller,

and (4) Chagrin Falls did not elicit testimony from a records custodian.

We review a trial court’s decision to admit evidence for abuse of

discretion. O’Toole v. Hamman, 8th Dist. Cuyahoga No. 109193,

,

¶ 28. An abuse of discretion occurs when the trial court’s attitude is unreasonable,

arbitrary, or unconscionable. Marketing Assocs. v. Gottlieb, 8th Dist. Cuyahoga No.

92292,

, ¶ 47.

Evid.R. 901(A) governs the authentication of evidence. “The

threshold for admission is quite low, as the proponent need only submit ‘evidence

sufficient to support a finding that the matter in question is what its proponent claims.’” State v. Williams, 8th Dist. Cuyahoga No. 106563,

, ¶ 26,

quoting Evid.R. 901(A). The party trying to admit the evidence may show

authenticity through direct or circumstantial evidence.

We find that the trial court did not abuse its discretion in admitting

the AT&T records regarding Ptak’s cell phone. In State v. Richardson, 2016-Ohio-

8081,

(2d Dist.), the Second District held that the trial court did not

abuse its discretion when it admitted bank records in part because the state

presented sufficient evidence to authenticate the records. A Department of

Agriculture agent testified that he had requested the bank records pursuant to a

subpoena. Id. at ¶ 41. Attached to the records that the agent received was a letter

from one of the bank’s document review specialists that certified that the records

were true and correct copies of the originals. Id. at ¶ 40-41. The Second District

found that the subpoena issued by the agent in his official capacity and the certified

letter “provide the bank records with sufficient indicia of reliability that the

documents are in fact what they purport to be.” Id. at ¶ 45.

Likewise, here, Detective Capwill testified that he obtained the

records of Ptak’s cell phone through a court-ordered subpoena to AT&T, and that

the records were accompanied by a certification of authenticity from an AT&T

custodian.1 The certification itself was admitted into evidence and titled, “Certificate

1 The record does not contain a certification for C.W.’s phone records from Verizon,

but Detective Capwill testified that the AT&T and Verizon records were consistent with each other, and Ptak’s phone records from AT&T alone are sufficient to show when Ptak and C.W. called each other in 2018. of Authenticity of Domestic Records Pursuant to Federal Rules of Evidence 902(11)

and 902(13).” It is signed by an AT&T legal compliance analyst and states that the

records are “true duplicates of the original records[.]” It was therefore unnecessary

for C.W. to also authenticate the records or for Chagrin Falls to elicit testimony from

a records custodian.

Accordingly, we overrule Ptak’s second assignment of error.

III. Ineffective Assistance of Counsel

In his third assignment of error, Ptak argues that his counsel was

ineffective for failing to object to hearsay testimony from C.W. and Sergeant Fischer

that the car following C.W. in February 2019 was registered to Ptak’s mother.

The defendant carries the burden of establishing a claim of ineffective

assistance of counsel on appeal. State v. Corrothers, 8th Dist. Cuyahoga No. 72064,

, 19 (Feb. 12, 1998). To gain reversal on a claim of

ineffective assistance of counsel, a defendant must show that (1) his or her “counsel’s

performance was deficient,” and (2) “the deficient performance prejudiced the

defense.” Strickland v. Washington,

,

,

(1984). The first prong of the Strickland test requires the defendant to show

“that counsel’s representation fell below an objective standard of reasonableness.”

. Strickland’s second prong requires the defendant to show “that there is

a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.”

. “‘Hearsay’ is a statement, other than one made by the declarant while

testifying at trial or hearing, offered into evidence to prove the truth of the matter

asserted.” Evid.R. 801(C). Generally, hearsay testimony is inadmissible unless the

testimony falls within one of the recognized exceptions to the hearsay rule.

Evid.R. 802.

The Eighth District has consistently found that LEADS reports are

admissible under the public records exception to the hearsay rule,

Evid.R. 803(8)(a). State v. Schentur, 8th Dist. Cuyahoga No. 108448, 2020-Ohio-

1603, ¶ 29 (“This court has consistently held that a LEADS report is admissible when

properly authenticated, pursuant to Evid.R. 803(8) and 901.”). Cleveland v. Craig,

8th Dist. Cuyahoga No. 99619,

(“[T]his court has repeatedly

found that a LEADS printout is admissible as a public record under

Evid.R. 803(8)(a).”). “A police officer’s testimony is sufficient to show authenticity

of a LEADS printout under Evid.R. 901.” Schentur at ¶ 31; see also Craig at ¶ 37;

State v. Papusha, 12th Dist. Preble No. CA2006-11-025,

.

Here, Chagrin Falls submitted into evidence the LEADS report

identifying Kathleen Ptak as the owner of the car that followed C.W. in February

2019. Sergeant Fischer identified the LEADS report, testified that he entered the

license plate through the LEADS system, and the LEADS report identified the owner

of the vehicle as Kathleen Ptak. The LEADS report is therefore admissible under the

public records exception to the hearsay rule, and Sergeant Fischer’s testimony is

sufficient to establish the report’s authenticity. Therefore, the evidence that Kathleen Ptak owned the vehicle that was following C.W. was properly before the

jury via the LEADS report and Sergeant Fischer’s testimony.

Ptak relies on State v. Garrett, 8th Dist. Cuyahoga Nos. 87112 and

87123,

, in which this court found that a police officer’s testimony

based on his recollection of a mobile data computer was inadmissible hearsay. In

Garrett, the computer data information itself was not introduced into the record.

Id. at ¶ 13. But here, the LEADS report was submitted as an exhibit. Even though

C.W.’s testimony about what the police told her may have been hearsay, the evidence

of the identity of the vehicle owner was properly admitted through the LEADS report

and Sergeant Fischer’s testimony. Any deficiency in Ptak’s counsel’s failure to object

to C.W.’s testimony would not have prejudiced Ptak’s defense. Accordingly, Ptak is

unable to show that his counsel was ineffective.

We therefore overrule Ptak’s third assignment of error.

IV. Sufficiency of the Evidence

In his first assignment of error, Ptak argues that his conviction for

menacing by stalking is not supported by sufficient evidence. Ptak contends that

Chagrin Falls failed to present evidence that (1) he engaged in a pattern of conduct,

(2) he knowingly caused C.W. to believe that he would cause her physical harm, and

(3) that C.W. suffered mental distress. Ptak argues there is insufficient evidence of

a pattern of conduct because Chagrin Falls did now show that he was the person who

called and texted C.W. and followed her by car to her apartment and Panera Bread.

He maintains that Chagrin Falls did not submit any text messages into evidence or produce any evidence about the duration of the phone calls. He also claims that he

never threatened to physically harm C.W., and any annoyance C.W. felt does not rise

to the level of mental distress.

Crim.R. 29(A) provides for an acquittal “if the evidence is insufficient

to sustain a conviction of such offense or offenses.” A sufficiency challenge

essentially argues that the evidence presented was inadequate to support the jury

verdict as a matter of law. State v. Thompkins,

,

(1997). “‘The relevant question is whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.’” State v. Getsy,

,

(1998), quoting Jackson v. Virginia,

,

,

(1979). “[A] conviction based on legally

insufficient evidence constitutes a denial of due process.”

. When

reviewing a sufficiency-of-the-evidence claim, we review the evidence in a light most

favorable to the prosecution. State v. Hill,

,

(1996).

Both direct and circumstantial evidence may support a conviction.

Brook Park v. Gannon,

,

, ¶ 24 (8th Dist.).

“Although there are obvious differences between direct and circumstantial evidence,

those differences are irrelevant to the probative value of the evidence —

circumstantial evidence carries the same weight as direct evidence.” State v.

Cassano, 8th Dist. Cuyahoga No. 97228,

. “Since circumstantial evidence and direct evidence are indistinguishable so far as the jury’s

fact-finding function is concerned, all that is required of the jury is that it weigh all

of the evidence, direct and circumstantial, against the standard of proof beyond a

reasonable doubt.” State v. Jenks,

,

(1991).

“‘Circumstantial evidence is not only sufficient, but may also be more certain,

satisfying, and persuasive than direct evidence.’” State v. Hawthorne, 8th Dist.

Cuyahoga No. 96496,

, quoting Michalic v. Cleveland Tankers,

Inc.,

,

,

(1960).

R.C. 2903.211(A)(1) states:

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

R.C. 2903.211(D)(1) defines a pattern of conduct as two or more

actions or incidents closely related in time. “The incidents need not occur within

any specific temporal period.” Rufener v. Hutson, 8th Dist. Cuyahoga No. 97635,

. “A person acts knowingly, regardless of his purpose, when he

is aware that his conduct will probably cause a certain result or will probably be of a

certain nature.” R.C. 2901.22(B). “A person has knowledge of circumstances when

he is aware that such circumstances probably exist.”

It does not matter whether

the defendant “intended that his actions cause fear of physical harm or mental

distress[;] instead[,] what is important is [whether] he knew his actions would probably result in such fear and mental distress.” Vega v. Tomas, 8th Dist.

Cuyahoga No. 104647,

, ¶ 15, citing R.C. 2901.22(B).

R.C. 2903.211(D)(2) defines mental distress as “any mental illness or

condition that involves some temporary substantial incapacity” or “any mental

illness or condition that would normally require psychiatric treatment,

psychological treatment, or other mental health services, whether or not the person

requested or received” such treatment or services. “‘Incapacity is substantial if it has

a significant impact upon the victim’s daily life.’” M.D. v. M.D.,

,

(8th Dist.), quoting State v. Horsley, 10th Dist. Franklin No.

05AP-350,

. “Mental distress need not be incapacitating or

debilitating * * * [, and] expert testimony is not required to find mental distress.”

Perry v. Joseph, 10th Dist. Franklin Nos. 07AP-359, 07AP-360 and 07AP-361,

. “Evidence of changed routine can support a finding of mental

distress.” Morton v. Pyles, 7th Dist. Mahoning No. 11 MA 124,

. So can evidence that the complainant involved the police. State v. Calliens,

8th Dist. Cuyahoga No. 109005,

.

After reviewing the record, we find there was sufficient evidence for

the jury to find that Ptak knowingly engaged in a pattern of conduct that caused C.W.

mental distress. Threats of physical harm are not necessary to sustain a conviction

for menacing by stalking. R.C. 2903.211(A)(1). C.W. went to the police on four

separate occasions to try to force Ptak to stop contacting her: (1) in 2016 when Ptak

continued to contact her after she told him to stop; (2) in May 2018 when Ptak threatened her mother’s puppy and he would not stop sending her text messages,

(3) in August 2018 when Ptak left a love letter and roses on her car outside of her

apartment even though she had not told him where she lived; and (4) in February

2019 when someone she suspected to be Ptak was following her in a car that was

confirmed to belong to Ptak’s mother.

There is sufficient evidence in the record to identify Ptak as the person

who engaged in this pattern of conduct. Even though Chagrin Falls did not submit

any text messages into evidence, C.W. testified that she knew the text messages were

from Ptak because they referred to her by names that only Ptak called her. Ptak did

not deny sending C.W. a text message about the pictures she gave him when she

confronted him. The love letter left on C.W.’s car with the roses on August 27, 2018,

was signed by Ptak, and the phone records show that Ptak’s cell phone called C.W.’s

twice on that day. Furthermore, the LEADS report shows that the car that was

following C.W. in February 2019 belonged to Ptak’s mother, and C.W. testified that

the driver of the car was male. Ptak is correct that Chagrin Falls did not present

direct evidence that he was the person sending the text messages, that he was the

one using his cell phone to call C.W., or that he was the male driving the car. But

viewing the circumstantial evidence in the light most favorable to Chagrin Falls, any

rational jury could have found beyond a reasonable doubt that Ptak was the one who

engaged in this pattern of conduct.

As to mental distress, there is conflict among the Ohio Appellate

Districts regarding whether R.C. 2903.211(A)(1) requires the prosecution to show that the person actually suffered mental distress or merely that the person believes

that the defendant will cause him or her mental distress. Fondessy v. Simon,

,

,

(Kennedy, J., dissenting) (“A

conflict exists among the appellate districts regarding whether R.C. 2903.211(A)(1)

requires that the victim actually experienced mental distress or whether the victim’s

belief that the stalker will cause him or her mental distress is sufficient.”); State v.

Rasawehr, 3d Dist. Mercer No. 10-19-15,

(recognizing

the conflict). There is also a lack of clarity within the Eighth District on this issue.

Compare State v. Beckwith,

,

, ¶ 14 (8th Dist.)

(“[F]or a conviction of menacing by stalking, the statute does not require that the

victim actually suffered mental distress.”), with Williams v. Flannery, 8th Dist.

Cuyahoga No. 101880,

, ¶ 9 (requiring a showing of mental

distress). However, the distinction here makes no difference because we find that

viewing the evidence in the light most favorable to C.W., Chagrin Falls presented

sufficient evidence both that Ptak knowingly caused C.W. to believe that she would

suffer mental distress and that C.W. actually suffered mental distress.

Chagrin Falls presented sufficient evidence that Ptak knew that he

was causing C.W. to believe that she would suffer mental distress. In 2017, both

C.W.’s boyfriend and her housing manager contacted Ptak to tell him to stop calling

and sending C.W. text messages. In March 2018, C.W. called and texted Ptak very

upset in response to his message about “the pictures.” In May 2018, C.W. sent Ptak

a letter via certified mail warning him that she would contact the police if he were to contact her again. C.W. went to the police on four separate occasions, and the police

told Ptak to stop contacting her. This evidence is sufficient to show that Ptak was

aware that his conduct was causing C.W. to believe that she would suffer mental

distress. See State v. Erker,

,

, ¶ 81 (8th Dist.)

(finding defendant knowingly caused the victim to believe that she would suffer

mental distress because she “called the police numerous times, and the police spoke

with [the defendant] on more than one occasion about not contacting” her).

The evidence that C.W. went to the police four times also shows that

Ptak actually caused C.W. mental distress. Calliens, 8th Dist. Cuyahoga No. 109005,

(“[T]he fact that [the victim] was involving the police in

the first-place evidences mental distress.”). Chagrin Falls also demonstrated mental

distress with evidence that C.W. changed her routine by switching cars with her

mother for a few weeks so that Ptak could not follow her. See R.S. v. J.W., 9th Dist.

Summit No. 28970,

(finding sufficient evidence of mental

distress where the victim started using a different vehicle, changed her route to

work, parked in a garage so her vehicle was out of sight, and refrained from placing

window decals on the vehicle that would make it recognizable as hers); State v.

Williams, 8th Dist. Cuyahoga No. 107133,

(mail carrier’s act

of working her route out of order to prevent her former boyfriend from following her

was evidence of mental distress). Ptak points out that C.W. told Sergeant Fischer

that she did not think Ptak would physically harm her, but C.W. also told Sergeant

Fischer that Ptak’s conduct “freaked [her] out.” C.W. testified that it was “frightening” to her that this “strange man” was contacting her and figured out

where she lived. She said that she did not “know him anymore” and that she did not

“know what he’s capable of.”

Ptak cites State v. Beckwith, 8th Dist. Cuyahoga No. 98497, 2013-

Ohio-492, to argue that evidence that someone is uncomfortable or “creeped out” is

insufficient to establish mental distress. He also relies on Cleveland Hts. v. Lewis,

8th Dist. Cuyahoga No. 79511,

, for the proposition that evidence

that someone is upset, worried, or fearful about “not being able to go where she

wants” is insufficient to show mental distress. In Beckwith, this court found there

was insufficient evidence of mental distress where a library employee was

uncomfortable and “creeped out” because the defendant followed her around the

library and to a hotel entrance where she noticed he had his cell phone pointed at

her behind, but he did not call her, and he spoke to her only twice to help him find a

book and download a song. Id. at ¶ 17. In Lewis, this court found insufficient

evidence of mental distress where the defendant excessively called his ex-wife one

night, and the ex-wife testified that she was worried for her teenage children who

were staying with the defendant and was concerned that her children would not be

able to go “where they needed to go.” Id. at ¶ 17-24.

However, after reviewing the evidence presented, Ptak’s conduct and

C.W.’s distress in this case is more extreme than the facts in Beckwith and Lewis.

The evidence in this case is more akin to J.W. v. D.W., 10th Dist. Franklin No. 19AP-

52,

. In J.W., the Tenth District found sufficient evidence to support menacing by stalking where over the course of years, the offender “repeatedly

contacted [the victim] by phone, email, and appearing at his house.” Id. at ¶ 51. The

victim and his wife made changes “in their daily lives to attempt to avoid her,” and

the victim’s wife experienced stress and anxiety that affected her recovery from a

surgery. Id. In contrast to Beckwith and Lewis, and more like J.W., Ptak continued

to contact C.W. over the course of multiple years despite C.W., her boyfriend, her

housing manager, and the police repeatedly telling him to stop. Ptak’s messages

caused C.W. to send him a letter via certified mail and to contact the police. Ptak

discovered where C.W. lived without her telling him, causing C.W. to switch cars

with her mother to avoid him. And Ptak followed C.W. by car even after these

charges were processed against him and a no-contact order was in place, causing her

enough stress and anxiety to again reach out to the police.

Viewing the evidence in the light most favorable to Chagrin Falls, we

find that Chagrin Falls presented sufficient evidence to support a conviction for

menacing by stalking. Accordingly, we overrule Ptak’s first assignment of error.

V. Manifest Weight of the Evidence

In his fifth assignment of error, Ptak argues that his conviction for

menacing by stalking was against the manifest weight of the evidence. He again

contends that he never threatened C.W., C.W. never felt physically threatened or

suffered physical harm, and any inconvenience C.W. felt did not rise to the level of

mental distress. He further maintains that C.W. moved on with her life by attending college, there was no evidence that Ptak sent C.W. text messages, and that C.W. did

not testify that she received the 55 phone calls in 2018.

Unlike sufficiency of the evidence, a challenge to the manifest weight

of the evidence attacks the credibility of the evidence presented. Thompkins,

,

. Because it is a broader review, a reviewing court

may determine that a judgment of a trial court is sustained by sufficient evidence,

but nevertheless conclude that the judgment is against the weight of the evidence.

In determining whether a conviction is against the manifest weight of

the evidence, the court of appeals functions as a “thirteenth juror.”

In doing so,

it must review the entire record, weigh the evidence and all reasonable inferences,

consider the credibility of witnesses, and determine “‘whether in resolving conflicts

in the evidence, the [trier of fact] clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered.’”

, quoting State v. Martin,

,

(1st Dist. 1983). Reversing a conviction as being against the manifest weight of

the evidence and ordering a new trial should be reserved for only the “‘exceptional

case in which the evidence weighs heavily against the conviction.’”

quoting

Martin.

We agree with Ptak that there is no evidence that he physically

harmed or threatened C.W., but to establish menacing by stalking, physical harm is

not necessary if the defendant’s pattern of conduct knowingly caused someone to suffer mental distress. Ptak insists that the weight of the evidence shows that he did

not cause C.W. mental distress, but we disagree. Ptak’s conduct went on for years,

and C.W. went to the police on four separate occasions to try to force Ptak to stop.

Although she did continue to “move on with her life,” she was “frighten[ed]” that

Ptak figured out where she lived and was “scared” at the possibility that he was

following her — a possibility that was later confirmed when he followed her by car

after the charges against Ptak were processed and a no-contact order was in place.

She said that she did not “know what he was capable of,” and she changed her

routine by switching cars with her mother for a few weeks to try to prevent Ptak from

following her. We find that there was credible evidence that Ptak’s conduct

significantly impacted C.W.’s daily life.

Despite Ptak’s contention that there is not credible evidence that he

texted C.W., C.W. herself testified that she received an excessive amount of text

messages. We find C.W.’s testimony to be credible. She explained that she knew the

texts were from Ptak because they referred to her by names that only Ptak called her,

they referred to photos that she had sent Ptak, they contained messages about

wanting to be with her, they temporarily stopped when Ptak was told to stop

contacting her, and she did not know anyone else who could have been sending

them. We agree with Ptak that his 55 phone calls to C.W. could not have contributed

to C.W.’s mental distress if she had blocked his phone number and was not receiving

the calls. However, there is no evidence that Ptak knew his calls were not going through, and the record of the calls is circumstantial evidence that Ptak was also the

person sending her the text messages to which she testified.

After reviewing the entire record and weighing the evidence and all

reasonable inferences, we find that the jury did not clearly lose its way and create

such a manifest miscarriage of justice that Ptak’s menacing by stalking conviction

must be reversed and a new trial ordered. This is simply not the exceptional case

where the evidence weighs heavily against the conviction.

Accordingly, we overrule Ptak’s fifth assignment of error.

VI. Prosecutorial Misconduct

In his fourth assignment of error, Ptak argues that Chagrin Falls’

counsel committed prosecutorial misconduct by engaging in “inappropriate,

irrelevant, and immaterial comments” in his closing argument. Specifically, Ptak

points to comments when Chagrin Falls’ counsel (1) called C.W.’s testimony “overly

honest,” (2) referred to what Ptak’s conduct “did to” C.W., (3) claimed that the

Chagrin Falls Police Department “protect[ed] and serve[d],” (4) shifted the burden

of proof to Ptak by arguing that Ptak did not present any evidence, (5) impermissibly

commented that he had been waking up at 4:00 a.m. to prepare for trial, and (6)

asked the jury to give C.W. her life back by comparing her to a victim of child abuse

or murder.

Our review of the record shows Ptak failed to object to all but one of

the prosecutor’s comments, and thus, he waived all but plain error as to those

comments. State v. Frazier,

,

,

, ¶ 169. Under Crim.R. 52(B), “[p]lain errors or defects affecting substantial rights

may be noticed although they were not brought to the attention of the court.” The

plain-error rule is to be invoked only under exceptional circumstances to avoid a

manifest miscarriage of justice. State v. Long,

,

(1987). Plain error does not occur unless, but for the error, the outcome of the trial

clearly would have been different.

The test to determine if there was prosecutorial misconduct during

closing arguments is whether the remarks were improper and if so, whether they

prejudicially affected the defendant’s substantial rights. State v. Smith,

,

(1984). We must review the entire record to determine

whether the disputed remarks were unfairly prejudicial. State v. Moritz,

,

(1980). The touchstone of our analysis “is the

fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips,

,

,

(1982). Furthermore, an appellant must show

that there is a reasonable probability that, but for the prosecutor’s misconduct, the

result of the proceeding would have been different. State v. Loza,

,

(1994).

Although the prosecution is entitled to considerable latitude in

opening and closing arguments, it must nevertheless avoid assertions that are

calculated to mislead a jury. Smith at 14. It is improper for the prosecution to

express its personal belief or opinion as to the guilt or credibility of a witness. Id.

However, the prosecution is permitted to fairly comment on the credibility of witnesses based on the witnesses’ testimony at trial. State v. Williams, 8th Dist.

Cuyahoga No. 90739,

. “A prosecutor has wide latitude to

comment on the evidence of record, and may suggest conclusions based on that

evidence in a closing argument.” State v. Ceron, 8th Dist. Cuyahoga No. 99388,

. Prosecutors may comment in closing argument regarding

“‘what the evidence has shown and what reasonable inferences [the prosecutor]

believes may be drawn therefrom.’” State v. Lott,

,

(1990), quoting State v. Stephens,

,

(1970).

Further, a prosecutor may not invade the realm of a jury by alluding

to matters outside of the record. State v. Baker,

, 2005-Ohio-

45,

(2d Dist.). However, “[i]solated comments by a prosecutor

are not to be taken out of context and be given their most damaging meaning,” and

we must review the challenged statements within the context of the entire trial.

State v. Hill,

,

(1996).

Although some of the prosecutor’s comments were improper, after

reviewing the comments within the context of the entire trial, we cannot say that

they prejudicially affected Ptak’s substantial rights. The prosecutor was permitted

to comment on C.W.’s credibility based on her trial testimony, and the prosecutor’s

comment about C.W. being “overly honest” (immediately followed by a comment

that she answered “even the most uncomfortable of questions”) was likely referring

to C.W.’s willingness to answer questions about her dating history on cross-

examination. Likewise, the prosecutor’s comment about what Ptak’s conduct “did to” C.W. was based on her trial testimony about the mental distress his conduct

caused her. We see nothing improper about the prosecutor’s theme of “protect and

serve.” We do not find that the prosecutor shifted the burden of proof by

commenting that Ptak did not present any evidence that he did not receive C.W.’s

certified letter and that the post office employee was lying about delivering it. “It is

not improper for the prosecution, in closing, to point out the lack of evidence

supporting the defense theory of the case.” State v. Jackson, 8th Dist. Cuyahoga No.

76141,

, 31 (Apr. 20, 2000). The prosecutor’s comment

about what time he woke up to prepare for trial was irrelevant (or as Ptak

characterizes it, a “call to sympathy”), and it was improper for the prosecutor to ask

the jury to give C.W. her life back by comparing her to a victim of child abuse or

murder. However, after reviewing the record, we do not find that Ptak has shown

that there is a reasonable probability that, but for the prosecutor’s improper

comments, the result of the proceeding would have been different.

We therefore overrule Ptak’s fourth assignment of error.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment

into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

MARY J. BOYLE, PRESIDING JUDGE

ANITA LASTER MAYS, J., and KATHLEEN ANN KEOUGH, J., CONCUR