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Date: 05-02-2021

Case Style:


Case Number: C-200106

Judge: Pierre H. Bergeron


Plaintiff's Attorney: Andrew S. Garth, Interim City Solicitor, William T. Horsley, City Prosecutor, and
Jennifer Bishop, Assistant Prosecutor

Defendant's Attorney:

Criminal Defense Lawyer Directory


Cincinnati, Ohio - Criminal defense attorney represented Sierra Smith with a telecommunications harassment charge

Prompted by jealousy, a relational turf war resulted in a
telecommunications harassment conviction after defendant-appellant Sierra Smith
launched a threatening Facebook message to her boyfriend’s ex. On appeal, Ms.
Smith attacks the trial court’s credibility determinations, arguing that her conviction
runs afoul of the weight of the evidence. After reviewing the record, we conclude that
the trial court did not lose its way in evaluating the evidence, and we affirm Ms.
Smith’s conviction.
{¶2} The events underlying this case occurred while Ms. Smith’s boyfriend,
Brandon Domineack, enjoyed the company of his son for weekend visitation. The
boy’s mother (Mr. Domineack’s ex-girlfriend) called Mr. Domineack’s phone to talk
with her son. But importantly, for purposes of this appeal, the mother used
Facebook’s messaging app to call Mr. Domineack’s Facebook account. This type of
internet call is free, provided that both parties have the app installed on their phones
and are connected to Wi-Fi. Nonetheless, Ms. Smith balked at the mother calling
Mr. Domineack’s phone, so she interrupted the mother’s conversation with her son
to accuse her of having ulterior motives for calling—presumptively a reunification
with Mr. Domineack. A verbal altercation ensued that ended with Ms. Smith
instructing the mother to stop calling his phone and threatening physical violence
should she continue doing so. And to reinforce the point, Ms. Smith proceeded to
taunt that the mother did not know where Mr. Domineack lived, or the whereabouts
of her son (under Ms. Smith’s watchful eye).
{¶3} Within minutes of ending the call, a volley of messages flew back and
forth between the mother and Mr. Domineack’s Facebook account. And this OHIO FIRST DISTRICT COURT OF APPEALS
exchange ended with Ms. Smith allegedly sending the threatening message that
forms the basis of her conviction: “ima kill yo son first since u want my man so bad[.]
im always around [your son,] its easy access, ain’t no reason for u to call him no more
* * * .” The mother then frantically called Mr. Domineack’s Facebook account in an
attempt to talk with her son, but to no avail. After calling 20 times or so, Ms. Smith
eventually answered, but she refused to let the mother speak with her son.
{¶4} The mother turned over screen shots of the threatening message to
police, and Ms. Smith was charged with telecommunications harassment under R.C.
2917.21(B)(1). This statute provides: “No person shall make or cause to be made a
telecommunication * * * from a telecommunications device under the person’s
control, with purpose to abuse, threaten, or harass another person.” R.C.
2917.21(B)(1). The case proceeded to a bench trial, and Ms. Smith based her defense
on the fact that the threatening message was sent from Mr. Domineack’s Facebook
account. In other words, she maintained that no direct evidence existed that she
actually sent the message. Nonetheless, the mother identified the voice that
interrupted her conversation with her son, and later answered her call, as belonging
to Ms. Smith. Additionally, Mr. Domineack testified that Ms. Smith had access to his
phone on that date and insisted that he had not sent the messages. Tying this
testimony together, along with the context of the messages, the trial court
determined that Ms. Smith sent the threatening message and found her guilty of
telecommunications harassment. Ms. Smith now appeals.
{¶5} In Ms. Smith’s sole assignment of error, she insists that the trial
court’s judgment stood against the weight of the evidence. In reviewing whether her
harassment conviction runs counter to the manifest weight of the evidence, we sit as OHIO FIRST DISTRICT COURT OF APPEALS
a “thirteenth juror.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541
(1997). In other words, we review the evidence, the credibility of witnesses, the
entire record. Id. But we will only reverse if the trial court “clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed
and a new trial ordered.” Id., quoting State v. Martin, 20 Ohio App.3d 172, 175, 485
N.E.2d 717 (1st Dist.1983).
{¶6} Ms. Smith offers four reasons why she believes the trial court lost its
way. She argues: (1) that the mother’s voice identification of Ms. Smith was dubious
because they had only interacted, in person, once before; (2) that anyone with access
to Mr. Domineack’s Facebook account could have sent the threatening message; (3)
that the mother is untruthful; and (4) that Mr. Domineack testified that the mother
deleted some of the messages she sent, thus preventing the court from seeing the
threatening message in context.
{¶7} None of these points convinces us that a manifest injustice occurred.
First, we note the absence of any evidence contradicting the mother’s voice
identification (Ms. Smith did not testify). And Ms. Smith provides no authority for
the proposition that a voice identification cannot be based on a single interaction.
Second, while it’s true that anyone with access to Mr. Domineack’s Facebook account
could have theoretically sent the threatening message, no evidence was adduced in
the record to call the authorship into question. And the overlapping time frame of
the voice conversations between Ms. Smith and the mother (through Mr.
Domineack’s Facebook account) and the threatening message produces compelling
evidence that Ms. Smith sent the message. Third, even assuming that the mother
presents some credibility issues or deleted some of her messages, we see no dispute OHIO FIRST DISTRICT COURT OF APPEALS
that the threatening message at issue was sent to the mother from Mr. Domineack’s
Facebook account.

Outcome: Thus, we conclude that the trial court had ample reason to find
that Ms. Smith sent the threatening message in view of the totality of the evidence, and we cannot say that the court lost its way in making this determination.

We therefore overrule Ms. Smith’s sole assignment of error and affirm the trial court’s judgment.

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