[Cite as State v. Conley,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY

STATE OF OHIO, CASE NO. 8-20-55 PLAINTIFF-APPELLEE,

v.

SHAWN M. CONLEY, OPINION

DEFENDANT-APPELLANT.

Appeal from Logan County Common Pleas Court Trial Court No. CR 19 08 0233

Judgment Affirmed

Date of Decision: August 2, 2021

APPEARANCES:

William T. Cramer for Appellant

Alice Robinson-Bond for Appellee Case No. 8-20-55

WILLAMOWSKI, P.J.

{¶1} Defendant-appellant Shawn Conley (“Conley”) brings this appeal from

the judgment of the Court of Common Pleas of Logan County convicting Conley of

one count of menacing by stalking. Conley claims on appeal that the trial court

erred 1) by admitting evidence of prior bad acts; 2) that his conviction was not

supported by sufficient evidence; and 3) the conviction was against the manifest

weight of the evidence. For the reasons set forth below, the judgment is affirmed.

{¶2} On August 13, 2019, the Logan County Grand Jury indicted Conley on

one count of menacing by stalking in violation of R.C. 2903.211(A)(1), (B)(2)(d), a

felony of the fourth degree, and one count of menacing by stalking in violation of

R.C. 2903.11(A)(1), (B)(2)(e), a felony of the fourth degree. Doc. 6. Conley

entered pleas of not guilty to both counts. Doc. 14. Before trial, Conley filed a

motion in limine to restrict admission of his prior bad acts and mention of the civil

protection order (“CPO”). Doc. 163. On August 11, 2020, the trial court granted

the motion in limine as to the civil protection order, but denied it as to the prior bad

acts. Doc. 168.

{¶3} A jury trial was held on August 12 and 13, 2020. Doc. 180. During the

trial, the following evidence was presented. Kristen Conley (“Kristen”) testified

that she was Conley’s ex-wife. Tr. 35. Kristen testified that on November 20, 2018,

Conley had grabbed her wrists and shoved her against the counter, resulting in a

new tattoo bleeding, marks, and bruises. Tr. 36. She chose not to press charges

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because Conley indicated he would get “help”. Tr. 37. Kristen also testified that

Conley had struck her daughter on her hip leaving a bruise in 2019. Tr. 38. On

cross-examination, Kristen admitted that charges were filed against Conley for

when he grabbed her wrist leaving a mark, but he was not convicted. Tr. 45. She

also admitted the injury to her daughter was the result of Conley disciplining the

child by spanking. Tr. 48. When asked, Kristen admitted that she did not believe

Conley was dangerous. Tr. 49.

{¶4} Frederick Otterbein (“Otterbein”) testified that he is the district asset

protection manager for Kroger and had worked for Kroger for 42 years. Tr. 55.

Otterbein testified that there is security video in the stores, but no audio. Tr. 56. He

identified Exhibit 1 as security footage from the Kroger checkout. Tr. 66. He also

identified Exhibit 2 as security footage from the Kroger liquor department. Tr. 66.

{¶5} C.B., the victim, testified that in October of 2018, she was sixteen years

of age. Tr. 76. At that time, she worked part time at the Kroger store in

Bellefontaine as a cashier. Tr. 77. C.B. first met Conley two weeks after she started

working at Kroger. Tr. 78. The first time she met him she was checking out his

groceries and he started talking to her about an injury she had to her wrist which

required her to wear a brace. Tr. 79. When C.B. handed the receipt to Conley, he

grabbed her wrist and told her to keep the boys away from her. Tr. 79. C.B. thought

this was a strange thing to say. Tr. 80. Another time, C.B. was wearing a necklace,

which had a picture of her and her boyfriend in it. Tr. 80. Conley asked her who

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he was and when she told him it was her boyfriend, he told her to make sure the

boyfriend treated her right. Tr. 80. These interactions made C.B. feel

uncomfortable. Tr. 81. Conley would make it a point to come through her line and

it made her uncomfortable enough that she reported it to her manager. Tr. 81.

{¶6} One incident involved Conley going to the self-checkout with one item.

Tr. 82. When he saw C.B. come back from her break to work a register, he left the

self-checkout and got into her line behind other people. Tr. 82. Conley overheard

another worker make a comment about C.B. and her brother-in-law and became

angry. Tr. 84. Conley told her bagger to make sure to keep the boys away from her

and to protect her. Tr. 85. When Conley would pay for items with cash, his hand

would linger on C.B.’s or he would try to grab her hands. Tr. 86. C.B. told her

coworkers about this behavior and they would try to help her avoid Conley. Tr. 86.

When coworkers saw him approaching her register, they would send her on break

or send her to stock shelves so she would not be interacting with him. Tr. 86. After

Conley’s comment to the bagger, management decided to remove her from the floor

when he came into the store. Tr. 87. This occurred 20-30 times between October

2018 and June 2019. Tr, 87. On one occasion, she had to wait approximately an

hour and a half because Conley saw her going on break and waited for her to come

back. Tr. 88. When she came down from the break with the manager escorting her

after that amount of time, she saw Conley still in the store with only a few random

items. Tr. 89.

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{¶7} On June 12, 2019, C.B. was helping bag for another cashier. Tr. 89, 91.

Conley came in the exit doors, pinched her bra strap, and then continued to try and

have a conversation with C.B. Tr. 90. The State then showed a video of this

incident from Exhibit 1. Tr. 90. Conley told C.B. that he had seen her the previous

day in her father’s truck. Tr. 91. This encounter caused C.B. to be worried and

become shaky. Tr. 91-92. A coworker then came over to take her place and told

her to go hide so that Conley could not get to her. Tr. 92.

{¶8} On another occasion, C.B. was waiting in her car to go in the store and

clock in because she was early. Tr. 94. C.B. felt like someone was watching her

and looked in her mirror. Tr. 94. Conley was standing behind her car smoking a

cigarette. Tr. 94. When C.B. got out of the car, Conley started asking her about her

future plans and tried to give her a hug. Tr. 94. C.B. testified that she put her head

down and kept walking. Tr. 94. On other occasions, Conley would follow C.B. into

the parking lot when her shift was over. Tr. 96. C.B. testified that on multiple

occasions, Conley’s car would be parked next to hers, regardless of which vehicle

she had driven. Tr. 96. In the two months before she obtained the restraining order,

this was happening almost every time she worked. Tr. 97.

{¶9} C.B. testified that one day she was going to a nail appointment. Tr. 97.

Conley saw her and stopped his vehicle in an intersection in front of her and tried

to have a conversation with her. Tr. 97-98. C.B. rolled up her window and ignored

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him. Tr. 98. She could not pull away because he was blocking her path. Tr. 98.

This interaction made C.B. fearful because it was close to her home. Tr. 98.

{¶10} C.B. testified that in most of the encounters, she just tried to ignore

Conley. Tr. 99. She would brush off the conversation and focus on his groceries.

Tr. 99. Sometimes when she did not acknowledge him, Conley would comment

that she did not seem happy or tell her to smile more. Tr. 99. Eventually her

coworkers would intervene to allow her to get away from him. Tr. 100. The male

coworkers would walk her to her car at night to protect her in case he was out there

waiting for her. Tr. 100. C.B. testified that when Conley came into store, her hands

would start shaking and she would start feeling nauseous. Tr. 100. C.B. testified

that instead of going directly home from work, she would take different routes to

avoid being followed. Tr. 101. Eventually her fear led to her family purchasing a

security system for the home. Tr. 101. C.B. would constantly be checking over her

shoulder in public and developed a fear of going to large events because Conley

might be in the crowd. Tr. 101. C.B. was also concerned that Conley might do

something to her sisters. Tr. 102. Additionally, the stress of this caused her father

to lose weight and start tracking her phone to know where she was. Tr. 102. C.B.

even picked a college farther away from home to get away from Conley. Tr. 105.

C.B. testified that Conley should have known that his attentions were unwanted

because she was purposely being pulled from the register every time he came in the

store and she refused to speak with him. Tr. 105.

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{¶11} On cross-examination C.B. testified that she became uncomfortable

with Conley about two weeks after she first met him. Tr. 107. C.B. admitted that

her grades were not affected much. Tr. 109. C.B. did not seek a CPO until June of

2019. Tr. 114. C.B. admitted that she never told Conley to leave her alone and

never asked a coworker to tell Conley to leave her alone. Tr. 115. C.B. claimed

that she did not really discuss the issue with her family for several months because

she thought they would think she was overreacting. Tr. 121.

{¶12} T.B. testified that she is C.B.’s mother. Tr. 144. T.B. noticed that

C.B. had changed her personality as she was frequently looking over her shoulder

and did not want to go places alone. Tr. 145. On cross-examination, T.B. testified

that the tracker on the phone was not new, that it had always been there. Tr. 150.

The tracker was how T.B. noticed that C.B. was taking various routes home from

work. Tr. 150.

{¶13} Ch.B. testified that he is C.B.’s father. Tr. 156. He testified that before

this, C.B. was a carefree child, but since this started she is isolated and does not like

to go out in public. Tr. 156. Ch.B. indicated that he has lost 10-15 pounds due to

the stress from worrying about C.B. Tr. 157-58. Ch.B. admitted on cross-

examination that there have been no violations of the CPO. Tr. 160.

{¶14} Julie Litton (“Litton”) testified that she was the store manager at

Kroger’s in Bellefontaine during the time in question. Tr. 166. When C.B.’s

supervisor informed Litton that C.B. was afraid of Conley, she came up with a

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procedure to protect C.B. Tr. 167. When Conley came into the store, C.B. was to

go to the manager’s office in the upstairs of the building. Tr. 167. This happened

four different times when Litton was present. Tr. 167. Litton watched Conley when

he was in the store and noted that he was “just roaming, not really shopping”, that

he appeared to be just watching C.B. Tr. 168. Litton did not speak with Conley

about his actions, but did contact the loss prevention team. Tr. 168. Litton did

approach Conley once and ask if she could help him. Tr. 169. He said no and said

he was there with his mother. Tr. 169. Litton testified that when Conley came into

the store, C.B. would become terrified. Tr. 170. Litton tried to help the situation

by having a staff member walk C.B. to her car. Tr. 171. On cross-examination

Litton admitted that they started watching for Conley because of C.B. reporting she

was very uncomfortable. Tr. 174. She did not have Conley removed from the store

because she thought that was the job of loss prevention or the police. Tr. 178.

{¶15} Ryan Althouse (“Althouse”) testified that he is the customer service

coordinator at Kroger in Bellefontaine. Tr. 183. He was one of C.B.’s supervisors.

Tr. 184. When Althouse’s supervisor learned what was happening, she told him to

remove C.B. from the floor when Conley entered the store until the issue was

resolved. Tr. 185. The process involved pulling C.B. from the register and the sales

floor until Conley had left the store. Tr. 186. C.B. was taken to any area in the store

that was not open to the general public. Tr. 186. This was probably done five to

ten times before C.B.’s parents and the police became involved. Tr. 187. Once C.B.

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was removed from the sales floor, Althouse would watch to see when Conley would

leave. Tr. 188. Althouse noticed that Conley would pace up near the entrance by

the registers to see if C.B. was back yet. Tr. 188. One time C.B. was on register

and they missed seeing Conley. Tr. 188-89. Conley got in C.B.’s line, so they sent

another employee over to take her place. Tr. 189. When these instances occurred,

C.B. would get upset and frustrated. Tr. 190. Althouse testified that her facial

expressions made it clear that she was upset. Tr. 190. When Conley touched C.B.’s

back, C.B. immediately came into the office with Althouse and looked visibly

distraught. Tr. 191. Althouse testified that no one from Kroger got involved

because it is Kroger’s policy to defuse the situation until law enforcement is

involved. Tr. 191-92. Althouse admitted on cross-examination that after the CPO

was issued, Conley has not been back to the store. Tr. 193. According to Althouse,

he first spoke with C.B. about what was happening in late May or early June 2019.

Tr. 195. Althouse has seen Conley speaking with other employees and customers

with no complaints from them. Tr. 195. Before May of 2019, Althouse had not

seen C.B. be removed from the sales floor due to Conley’s arrival. Tr. 197.

{¶16} Andrew Abraham (“Abraham”) testified that he was a front end

associate at Kroger for two years. Tr. 204. This job required him to supervise the

breaks for people and direct the cashiers. Tr. 205. Abraham testified that in winter

of 2019 he was instructed to start hiding C.B. every time Conley came into the store.

Tr. 206. Abraham noted that Conley seemed to pick C.B.’s register and then he

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would send someone over to take her place. Tr. 207. Abraham recalled that C.B.

acted distressed when Conley would come in the store. Tr. 208. She would become

nervous and her face would “go white.” Tr. 208. Abraham testified that on

occasion, Conley would come into the store and then leave with no purchases. Tr.

211.

{¶17} Blake Baughman (“Baughman”) testified that he worked at Kroger

from May 2018 until March 2020. Tr. 216. Baughman performed the tasks of

bagging, stocking shelves, and cashier. Tr. 217. After Baughman became aware of

who Conley was and that he was bothering C.B., he started noticing him. Tr. 217.

Baughman noted that Conley came in the store more than usual and would spend an

hour and a half there, only picking up four or five items. Tr. 217. This happened

on the days that C.B. was working. Tr. 218. Conley always went to where C.B.

was stationed. Tr. 218. When Conley was ready to check out, he always went for

C.B.’s lane rather than a random one. Tr. 219. Conley would attempt to make small

talk with C.B. before he would leave. Tr. 219. This would occur even if the other

lanes had shorter lines, choosing to wait 10-15 minutes instead. Tr. 219. Baughman

testified in either December 2018 or January 2019, Conley came up to him outside

Kroger and asked him where the “tall girl that works up front lives”. Tr. 220.

Baughman assumed he was talking about C.B. Tr. 220. In June of 2019, Baughman

saw C.B. come in to clock in for her shift. Tr. 223. C.B. was shaking and claimed

that Conley had come up to her car in the parking lot. Tr. 223. Although Baughman

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did not see it happen, he testified that C.B. looked shocked and nervous. Tr. 224.

On cross-examination, Baughman admitted that he was only “90%” sure the man

who approached him to ask about the tall girl was Conley or that he was referring

to C.B. Tr. 225. Baughman learned about the situation when C.B. told him in

December 2018. Tr. 226. When C.B. told him, Baughman told her to talk to the

manager. Tr. 226. Baughman admitted that he had never personally seen Conley

approach C.B. Tr. 229.

{¶18} Jimmy Elkins (“Elkins”) testified that he worked as the store recruiter

and manager on duty for the Kroger store in Bellefontaine. Tr. 233. Elkins’

daughter is married to Conley’s brother, so he knows who Conley is. Tr. 234.

Elkins first became aware of the issue when Baughman pointed Conley out to him

as the man who was “stalking” C.B. Tr. 235. As the manager on duty, Elkins

noticed several times that Conley went to C.B.’s line. Tr. 235. After speaking with

Litton, Elkins was instructed to remove C.B. from the floor any time Conley got in

her line. Tr. 236. Elkins remembered this occurring two or three times. Tr. 236.

Every time Elkins saw Conley in the store, he went for C.B.’s line even though there

were several lanes open. Tr. 236. When he would remove C.B., she would look

frightened. Tr. 236. At the end of C.B.’s shift, Elkins, Baughman or Althouse

would walk her to her car in case Conley was in the parking lot. Tr. 236. Elkins

indicated on cross-examination that he informed Litton of the issue the day after he

was told. Tr. 238. Elkins denied telling Litton about Conley’s criminal past at that

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time, but did tell her later. Tr. 239. Elkins also told C.B. about Conley’s past when

she told him about him following her in her car. Tr. 240. Elkins admitted that

Conley had not come into the store since the CPO was issued. Tr. 248.

{¶19} Debbie Headley (“Headley”) testified that she had worked at Kroger

during the time at issue in this case. Tr. 261. On June 12, 2019, Headley was

working in the liquor department. Tr. 261. Headley identified Exhibit 2 as a video

of an interaction she had with Conley on that day. Tr. 263. Headley testified that

Conley came in the liquor department agitated and wanted to write down his phone

number for C.B. Tr. 264-65. Conley had told Headley that he knew where C.B.

lived, what vehicles she drove, and what time she got off work. Tr. 266. Conley

wanted to give C.B. his number so that he would not have to wait outside until she

got off work at 10:00. Tr. 266. Headley testified that Conley was agitated because

he did not think C.B.’s boyfriend was good enough for her and wanted to show her

what a “real man” was like. Tr. 267. When Conley left her department, Headley

called the manager to warn them because she was concerned about C.B. Tr. 269.

{¶20} Andy Loehr (“Loehr”) of the Bellefontaine Police Department

investigated the complaint that T.B. made to the police. Tr. 277, 279. Loehr

attempted to make contact with Conley, but was unable to do so. Tr. 280. While

C.B. was telling him what had happened, she became more nervous and started to

slump in her seat. Tr. 281. The first time he was able to speak with Conley was at

the hearing on the CPO. Tr. 283. Loehr admitted on cross-examination that no one

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had communicated directly with Conley that he needed to stop his behavior. Tr.

288. Since the CPO has been issued, Conley has complied with it. Tr. 288.

{¶21} Detective Brent Joseph (“Joseph”) of the Logan County Sheriff’s

Office testified that he knew Conley from an aggravated burglary case he

investigated in 2004 where Conley admitted breaking into the home of a 17 year

old victim and scaring her by coming into her bedroom wearing a mask and gloves

while holding what appeared to be a pistol. Tr. 290-293. When Conley heard her

scream and saw her on the phone, he fled from the scene. Tr. 293. On cross-

examination, Joseph admitted that Conley was 18 or 19 years old at that time. Tr.

294. Although Conley avoided answering the questions at the beginning, he soon

gave an accurate statement of what happened. Tr. 295. Joseph admitted that in his

opinion, Conley was honest with him about what had happened. Tr. 295. Joseph

also admitted that Conley’s maturity at that time was that of an average 18 or 19

year old “boy”. Tr. 296.

{¶22} At the conclusion of the trial, the jury returned verdicts of guilty on

both counts. Doc. 180. The trial court held a sentencing hearing on September 17,

2020. Doc. 187. At the hearing, the trial court determined that the two menacing

by stalking counts were allied offenses and the State chose to proceed to sentencing

on Count 2. Doc. 187. The trial court sentenced Conley to serve a prison term of

18 months in prison. Doc. 187. Conley filed a timely notice of appeal. Doc. 200.

On appeal, Conley raises the following assignments of error.

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First Assignment of Error

The trial court abused its discretion in admitting evidence of [Conley’s] prior acts of violence.

Second Assignment of Error

Conley’s due process rights were violated by a conviction for menacing by stalking that was not supported by sufficient evidence.

Third Assignment of Error

Conley’s conviction for menacing by stalking was not supported by the weight of the evidence.

Admission of Evidence

{¶23} In the first assignment of error Conley claims that the trial court erred

by admitting evidence of his prior acts of violence. Generally the admissibility of

other acts evidence rests within the sound discretion of the trial court and will not

be disturbed on appeal absent an abuse of the discretion that created material

prejudice. State v. Morris,

,

,

,

¶ 14 and State v. Diar,

,

,

.

“An abuse of discretion exists when a decision is unreasonable, arbitrary, or

unconscionable.” State ex rel. Sales v. Ohio Public Employees Retirement Board,

,

,

. “Absent an abuse of

discretion, as well as a showing that the appellant suffered material prejudice, an

appellate court will not disturb a trial court's ruling as to the admissibility

of evidence.” State v. Rollison, 3d Dist. Marion No. 9-09-51,

, ¶

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32. “When applying the abuse of discretion standard, an appellate court may not

substitute its judgment for that of the trial court.”

{¶24} Conley claims that the trial court erred by admitting evidence of his

prior violent acts. Generally, all relevant evidence is admissible. Evid.R. 402. “

‘Relevant evidence’ means evidence having any tendency to make the existence of

any fact that is of consequence to the determination of the action more probable or

less probable than it would be without the evidence.” Evid.R. 401. Relevant

evidence must be excluded “if its probative value is substantially outweighed by the

danger of unfair prejudice, of confusion of the issues, or of misleading the jury.”

Evid.R. 403(A). Although evidence of other crimes, wrongs, or acts generally are

not admissible to show the character of a person, they may be admitted for other

purposes. Evid. R. 404(B). This Court notes that one of the elements to be proven

by the State in Count 2 of the indictment is that the “offender has a history of

violence toward the victim or any other person or a history of other violent acts

toward the victim or any other person.” R.C. 2903.211(B)(2)(e). Since evidence of

a history of violent acts towards a person is required to prove the menacing by

stalking offense as set forth in Count 2, the trial court did not abuse its discretion by

allowing it to be admitted in this case. The first assignment of error is overruled.

Sufficiency of the Evidence

{¶25} In the second assignment of error, Conley claims that the conviction

was not supported by sufficient evidence. The question of whether the evidence

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presented at trial is legally sufficient to support a verdict is a question of law. State

v. Thompkins,

,

,

. Sufficiency

is basically a term of adequacy.

An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. * * * Accordingly, “[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” * * * “In deciding if the evidence was sufficient, we neither resolve evidentiary conflicts nor assess the credibility of witnesses, as both are functions reserved for the trier of fact.”

State v. Adkins, 3d Dist. Allen No. 1-19-71,

(citations

omitted).

{¶26} The jury convicted Conley of two counts of Menacing by Stalking.

Count 1 was merged into Count 2 at the sentencing hearing. When a conviction is

merged with another for the purposes of sentencing, there is no longer a conviction

to be vacated, so the sufficiency of the evidence to support the conviction need not

be addressed as long as the evidence is sufficient to support the selected conviction.

State v. Turner, 2nd Dist. Clark No. 2017-CA-78,

. Thus, if the

evidence is sufficient to support a conviction under Count 2, this Court need not

address the sufficiency of the evidence as to Count 1.

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{¶27} The State was required to provide evidence that

) engaged in

a pattern of conduct that 2) would cause mental distress to another person or a family

member of that person and 3) that Conley had a history of violent acts towards

another person. R.C. 2903.211(A)(1), (B)(2)(e). Many witnesses testified to the

pattern of conduct in which Conley engaged and to the effect it had on C.B.

Witnesses also testified that Conley should have realized that C.B. did not want his

attention by the nonverbal reactions C.B. had and the fact that she repeatedly

attempted to avoid him, including refusing to speak with him, refusing to make eye

contact with him, pretending she did not see or hear him when outside the store, and

immediately leaving the sales floor when Conley would arrive at the store.

Testimony was given that Conley had previously broken into the home of another

young woman while wearing a mask, gloves, and carrying what looked like a pistol.

The victim in that case felt that she had been threatened with violence and was very

afraid. Viewing this evidence in a light most favorable to the State, the evidence is

sufficient to support the conviction for menacing by stalking as set forth in Count 2.

Since the evidence was sufficient to support this conviction, we need not consider

the conviction in Count 1. The second assignment of error is overruled.

Manifest Weight of the Evidence

{¶28} Conley’s final assignment of error claims that the judgment was

against the manifest weight of the evidence. When reviewing a judgment to

determine if it is against the manifest weight of the evidence, an appellate court

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“review[s] the entire record, weighs the evidence and all reasonable inferences,

considers the credibility of witnesses and determines whether in resolving conflicts

in the evidence, the jury clearly lost its way and created such a manifest miscarriage

of justice that the conviction must be reversed and a new trial ordered.” State v.

Mendoza,

,

(2000). See, also, State v.

Thompkins,

,

(1997). A new trial should be

granted only in the exceptional case in which the evidence weighs heavily against

conviction.

. Although the appellate court acts as

a “thirteenth juror,” due deference to the findings made by the fact-finder must still

be given. State v. Moorer, 3d Dist. 13–12–22,

.

{¶29} In Conley’s case, ample testimony was presented as to the effect

Conley’s behavior had on C.B. C.B. was nervous every time Conley was around,

had to hide in the store when he came in, took different routes home to avoid being

followed, had to be escorted to her car when she left work, and was frequently

looking over her shoulder to make sure Conley was not around. C.B. and her family

testified that she felt sick and was more withdrawn since Conley started his behavior

of frequently coming in the store and trying to interact with her. C.B. testified that

Conley stopped in the middle of an intersection preventing her from driving away

while trying to talk to her. Despite her ignoring him and hiding when he came in

the store, Conley persisted with his conduct.

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{¶30} Conley argues that he lacked the mens rea because he did not know

that his attentions were unwanted. For the jury to convict, Conley must have been

found to act knowingly. The trial court defined knowingly for the jury as follows.

A person acts knowingly, regardless of purpose, when the person is aware that the person’s conduct will probably cause a certain result or be of a certain nature. A person has knowledge of circumstances when the person is aware that the person’s conduct will probably cause a certain result or be of a certain nature. A person has knowledge of circumstances when the person is aware that such circumstances probably exist. Because you cannot look into the mind of another, knowledge is determined from all of the facts and circumstances in evidence.

You will determine from these facts and circumstances whether or not there exists at the time in the mind of the defendant an awareness of the probability that he would cause [C.B.] to believe that he would cause physical harm to [C.B.] or a family or household member of [C.B.], or cause mental distress to [C.B.] or a family or household member of [C.B.]

***

* * * The defendant’s responsibility is not limited to the immediate or most obvious result of the defendant’s fail – act or failure to act. The defendant is also responsible for the natural and foreseen consequences or results that follow in the ordinary course of events from the act or failure to act.

Tr. 330-331.

{¶31} Here, the witnesses all admitted that no one at any time told Conley to

stay away from C.B. or to leave her alone. All of the witnesses also admit that once

the CPO was in place, Conley did not violate it. However, all of this evidence was

before the jury and they concluded that Conley knew that his attentions were not

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wanted based upon the nonverbal actions taken by C.B. and the fact that every time

he came in the store, C.B. was removed from the floor and did not return while he

was present, no matter how long he was there. A review of the record before this

Court does not show that the jury clearly lost its way, that the evidence weighs

heavily against conviction, or that a manifest miscarriage of justice occurred. Thus,

the convictions are not against the manifest weight of the evidence. The third

assignment of error is overruled.

{¶32} Having found no prejudicial error in the particulars assigned and

argued, the judgment of the Court of Common Pleas of Logan County is affirmed.

Judgment Affirmed

ZIMMERMAN and SHAW, J.J., concur.

/hls

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