(?Cfi 84;' CLERKOIr LO'UiRT $UPREME COIJR'i' flf^i.3^lci. Appellant IN THE SUPREME COURT OF OHIO SUPREME COURT CASE NO STATE OF OHIO

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1 IN THE SUPREME COURT OF OHIO STATE OF OHIO Appellee, vs, SALVATORE SALUPO Appellant SUPREME COURT CASE NO ON APPEAL FROM THE COURT OF APPEALS, NINTH APPELLATE DISTRICT 07CA LORAIN COUNTY COMMON PLEAS COURT CASE NO. 04CR MEMORANDUM OF APPELLEE IN OPPOSITION TO JURISDICTION DENNIS P. WILL, # Lorain County Prosecuting Attorney Lorain County, Ohio 225 Court Street, 3rd Floor Elyria, Ohio (440) ROBERT A. DIXON ( ) DAVID L. DOUGHTEN ( ) 4403 St. Clair Avenue Cleveland, Ohio (216) BY: BRENDAN J. MACKIN, # Assistant Prosecuting Attorney COUNSEL FOR APPELLEE COUNSEL FOR APPELLANT (?Cfi 84;' CLERKOIr LO'UiRT $UPREME COIJR'i' flf^i.3^lci

2 TABLE OF CONTENTS Table of Contents... i Table of Authorities...ii Explanation of Why This Case Does Not Involve A Substantial Constitutional Question And Is Not A Case Of Public Or Great General Interest..:...1 Statement of the Case & Facts...1 LAW & ARGUMENT...4 RESPONSE TO APPELLANT'S SOLE PROPOSITION OF LAW 1. An Indictment provides sufficient notice of a required element to elevate the charge from a misdemeanor to a felony of the fifth degree when the Indictment states it is a felony of the fifth degree pursuant to R.C (A)... 4 Conclusion... 8 Proof of Service... 8 i

3 TABLE OF AUTHORITIES CASES: Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348(2000)...5, 6 State v. Brooke, 113 Ohio St.3d 199, 2007 Ohio State v. Cimpritz, 158 Ohio St.490, 110 N.E.2d State v. Higgs (January 12, 1990), 6th Dist. No. WD State v. Louis (March 7, 2001), gm Dist. No State v. Salupo, 9th Dist. No. 05CA State v. Salupo, 9th Dist. No. 07CA009233, 2008 Ohio State v. Tamburin, 9th Dist. No. 02CA0068-M, 2003 Ohio RULES & STATUTES: Crim.R Crim.R. 7(B)... 7, 8 R.C (A)...1 S.C (A)(5)...1 R.C R.C (A)(5)...1, 5, 6, 7 R.C (C)(2)... 5 R.C , 7, 8 ii

4 EXPLANATION OF WHY THIS CASE DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION AND IS NOT A CASE OF PUBLIC OR GREAT GENERAL INTEREST This Honorable Court should not accept jurisdiction for the following reasons: 1. The decision of the Ninth Judicial District Court of Appeals to affirm Appellant's conviction and sentence created no injustice as Appellant's arguments were addressed by existing case law. 2. No issue or substantial constitutional question exits in the Appellant's appeal to this Honorable Court. The attempted appeal further presents no viable question of general public interest so as to warrant the exercise of this Court's jurisdiction. STATEMENT OF THE CASE On March 11, 2004, Appeliant was indicted by the Lorain County Grand Jury on one (1) count of Extortion, a violation of R.C (A)(5), a felony of the third degree; one (1) count of Menacing by Stalking, a violation of R.C. 2903,211(A), a felony of the fourth degree; and one (1) count of Telecommunications Fraud, a violation of R.C (A)(5), a felony of the fifth degree. The count of Telecommunications Fraud was later amended to a charge of Telecommunications Harassment pursuant to Criminal Rule 7. (Tr. 6-14). On June 15, 2005, the matter proceeded to a bench trial before Visiting Judge Kosma J. Glavas. On August 3, 2005, the trial court found Appellant guilty of counts one (1) and three (3) of the indictment. Appellant was acquitted of count two (2). On October 31, 2005, Appellant was sentenced to three (3) years community control sanctions and further ordered to have no contact with the victim or her family. On November 4, 2005, Appellant filed notice of appeal with this Honorable Court. On February 24, 2006, this Court dismissed Appellant's case for failing to timely file his merit brief. See State v. Salupo, 9th Dist. No. 05CA

5 It appears that despite not being docketed that Appellant filed a petition for post conviction relief with the trial court. It further appears that this petition sought nothing more than a resentencing so that Appellant's deadline for filing a timely appeal might be extended. On November 20, 2006, the trial court re-sentenced Appellant due to the trial court granting Appellant's petition for post conviction relief. An identical sentence was imposed. The sentencing order was not docketed until December 4, Appellant then filed notice of appeal with the Ninth District Court of Appeals on December 14, On July 28, 2008, the Court of Appeals found there was insufficient evidence to support the extortion conviction in count one, but affirmed the conviction and sentence for telecommunications harassment in violation of R.C , a felony of the fifth degree. State v. Salupo, 9th Dist. No. 07CA009233, 2008 Ohio On September 11, 2008, Appellant filed a Notice of Appeal and Brief in Support of Jurisdiction to this Honorable Court. Appellee now responds and urges this Court to decline jurisdiction over the instant matter. STATEMENT OF FACTS Kathleen Paine has both dated and lived with Appellant. (Tr. 29, 32). Paine met Appellant in (Tr. 29, 65, 66). Eventually, the relationship terminated sometime from (Tr. 29, 30, 72). The relationship between Paine and Appellant appears to have been conflictual at best. (Tr. 33). Paine spoke of physical abuse and threats to her children. (Tr. 33, 34, 81). After the pair split, they remained friends. (Tr. 35, 37, 71). Appellant began to contact Paine on a frequent basis after his relationship ended with another woman in (Tr. 35). In 2003, Paine was forced to seek the assistance of the Oberlin Police Department because Appellant refused to cease contact with her at her place of employment. (Tr. 41). Paine had 2

6 requested that Appellant cease contact with her; Appellant refused to comply with this request. (Tr. 41, 42). Criminal charges were filed against Appellant in the Oberlin Municipal Court. (Tr. 42). Appellant was convicted of Menacing by Stalking, Telephone Harassment, and Domestic Violence. (Tr. 46). A condition of Appellant's sentence was that Appellant and Paine have no contact with each other for a period of three (3) years. (Tr. 45, 46, 47, 62; State's Exhibit One (1)). Both Paine and Appellant signed this Court order. (Tr. 45, 46, 62; State's Exhibit One (1)). Approximately three (3) months later, Appellant began contacting Paine. (Tr. 48). As before, Paine informed Appellant that his calls were unwanted. (Tr. 58). This obviously did not deter Appellant. Paine again contacted the Oberlin Police Department. (Tr. 48, 49). At law enforcement suggestion, Paine began to tape record Appellant's calls. (Tr. 49). During the calls, Appellant threatened Paine and demanded a meeting with her. (Tr. 59, 60, 73, 75). Appellant stated he would discredit Paine at her place of employment, tell people she ran a cult, tell people Paine has sex with animals, tell people that she kept homeless people in a barn on her property, tell people she was having sex with members of the Oberlin Police Department and Oberlin Municipal Court staff if she did not meet, with him. (Tr. 62). These calls and threats frightened Paine as she was aware Appellant possessed weapons in his home. (Tr. 62, 63, 81). Paine believed that Appellant would use his weapons on her and her family. (Tr. 63). Appellant's calls to Paine did not cease until he was arrested. (Tr. 63). Paine's fear still remained. (Tr. 64). Paine sought a civil order of protection for herself and family when she discovered Appellant was released from custody. (Tr. 64, 65). Kathleen Campbell-Curl is Paine's co-worker, and she is the operator at Johnson Control. (Tr. 83, 84). Campbell-Curl recalled taking many phone calls from Appellant to Paine. (Tr. 84, 3

7 85). Campbell-Curl testified that Appellant's phone calls became more urgent, anxious, and rushed as time progressed. (Tr. 86, 87). If Paine was unavailable, Appellant would ask Campbell- Curl to find or page Paine. (Tr. 86). Appellant's calls soon made Campbell-Curl uncomfortable, and caused Paine to become greatly upset. (Tr. 87, 88, 89). William Futrall is the night shift superintendent at Johnson Control. (Tr. 96). Futrall was aware of action taken against Appellant by Johnson Control regarding the issue of his trespassing. (Tr. 97, 99). Futrall also indicated that he often had other workers walk Paine to her vehicle and that she was observed to be visibly upset at work. (Tr. 99, 100). Detective Ortiz of the Oberlin Police Department handled Paine's complaint. (Tr. 104, 105). During their meeting, Paine was an emotional wreck; Paine was crying, her hands were shaking, and her voice cracked. (Tr. 111). Paine was reporting Appellant's renewed contact with her. (Tr, 105, 106). Appellant was contacting Paine at work with great frequency. (Tr. 107). When Ortiz began to investigate the complaints, he was aware of the prior Oberlin Municipal Court no contact order. (Tr. 110). LAW & ARGUMENT RESPONSE TO APPELLENT'S FIRST PROPOSITION OF LAW 1. AN INDICTMENT PROVIDES SUFFICIENT NOTICE OF A REQUIRED ELEMENT TO ELEVATE THE CHARGE FROM A MISDEMEANOR TO A FELONY OF THE FIFTH DEGREE WHEN THE INDICTMENT STATES IT IS A FELONY OF THE FIFTH DEGREE PURSUANT TO R.C (A). Appellant contends that the trial court erred when it sentenced him on count three (3) of the indictment. Appellant contends that he should have been sentenced for a misdemeanor, rather than a felony offense, because the text of the indictment did not contain, as an element of the offense, his prior conviction. Appellant further contends that the conviction and sentence 4

8 violated his Federal Due Process rights, State Due Process rights, and the State requirements for an indictment. Appellant's assertion lacks merit. The Jury convicted the Appellant of violating R.C (A)(5), Telecommunications Harassment, which provides in pertinent part: "No person shall knowingly make or cause to be made a telecommunication,,. if the caller... knowingly makes the telecommunication to the recipient of the telecommunication... and the recipient... previously has told the caller not to make a telecommunication to those premises or to any person at the residence." Section (C)(2) further provides that a violation of that section "is a misdemeanor of the first degree on a first offense and a felony of the fifth degree on each subsequent offense. Appellant's first argument contends that his conviction and sentence violated his federal Constitutional due process rights. The Appellant asserts that under federal due process, any finding that raises the possible maximum sentence is an element of the offense that must be stated in the indictment and found by the trier of fact. The Appellant argues that he could only be convicted of a misdemeanor because the text of the indictment did not set forth his prior conviction, which enhances the telephone harassment to a felony of the fifth degree. In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct (2000), the United States Supreme Court held that the Fourteenth Amendment's due process clause required that any fact that increased the penalty for a state crime beyond the statutory maximum - other than the fact of a prior conviction - had to be submitted to a jury and proved beyond a reasonable doubt. It should be noted that Apprendi addressed a penalty enhancement for a hate crime that was not an element of the offense and was used as a sentencing factor that added prison time to the statutory penalty range. Appellant's federal due process argument is without merit. In this case, the Appellant's conviction for telephone harassment was elevated from a misdemeanor to a felony due to the 5

9 Appellant's prior conviction for the same offense, hence the "other than the fact of a prior conviction" exception stated in Apprendi applies. In addition the Appellant had notice of the prior conviction because the indictment clearly specified the statutory section of (A)(5), and that this offense was a felony of the fifth degree. This offense could only be a felony of the fifth degree if it was a subsequent offense. Appellant's second argument is that his conviction and sentence for telecommunications harassment violated his State due process rights. Appellant asserts that the prior conviction was an essential element of the indictment. Since the words stating the existence of a prior conviction were not in the text of the indictment, Appellant is under the mistaken belief that he could only be convicted of a misdemeanor offense. This Court ruled in State v. Brooke, 113 Ohio St.3d 199, 2007 Ohio 1533, at P8, that "When the existence of a prior conviction does not simply enhance the penalty but transforms the crime itself by increasing it's degree, the prior conviction is an essential element of the crime and must be proved by the state." If an essential element of an offense,.. is omitted from an indictment, such omission is fatal to the validity of the indictment. State v. Cimpritz, 158 Ohio St. 490, 110 N.E.2d 416. In the case at hand the requirement that the existence of a prior conviction be alleged in the indictment was satisfied by the statement in count three of the indictment that the Appellant's violation of Section (A)(5) was "a felony of the fifth degree." R.C addresses charging requirements in regard to elements which enhance the degree of an offense and provides in pertinent part: (A) When the presence of one or more additional elements makes an offense one of more serious degree: 6

10 (1) The affidavit, complaint, indictment, or information either shall state the degree of the offense which the accused is alleged to have committed, or shall allege such additional element or elements. Otherwise, such affidavit, complaint, indictment, or information is effective to charge only the least degree of the offense. State v. Tamburin, 9th Dist. No. 02CA0068-M, 2003 Ohio The statute makes clear that either stating the degree of the offense or alleging degree enhancing elements creates an effective indictment in a case such as this one. Here, the indictment charged Appellant with a violation of R.C. 2917,21(A)(5), a felony of the fifth degree. This indictment complied with R.C Appellee was not required to allege Appellant's prior conviction in the text of the indictment since the indictment charged the offense of telephone harassement as a felony of the fifth degree. Appellant next contends that even though Appellee complied with the requirements of R.C that Crim.7(B) still required Appellee to allege the prior conviction in the indictment. Appellant is incorrect. Crim.R.7(B) provides, in part, the statement [in the indictment] may be made in ordinary and concise language without technical averments or allegations not essential to be proved. State v. Louis (March 7, 2001), 9th Dist. No R.C , however, is a more precise rule for determining whether the notice requirements of Crim.R.7(B) were complied with. State v. Higgs (January 12, 1990), 6th Dist. No. WD Here, the indictment complied with both Crim.R. 7(B), as it provided Appellant with notice of all the elements of the crime charged, and with R.C (A)(1), as it recites the penalty enhancement. State v. Louis (March 7, 2001), 9th Dist. No Appellee also provided Appellant notice of the penalty enhancement by indicting the offense as a felony offense rather than a misdemeanor offense. Appellant was on notice from the face of the indictment and from 7

11 the discovery that Appellee would utilize his prior conviction for Telephone Harassment in the current matter. Appellant and counsel were fully aware that the only way Appellee could have ever proven the felony offense of Telephone Harassment, would be to utilize a prior conviction. It is disingenuous, at best, for Appellant to now claim he did not receive notice that Appellee would utilize his prior conviction. Since Appellee complied with the notice requirements of Crim.R. 7(B) and R.C , Appellant second assignment of error should be denied. sentence. CONCLUSION For the foregoing reasons, this Honorable Court should affirm Appellant's conviction and Respectfully Submitted, DENNIS P. WILL, # Lorain County Prosecuting Attorney Lorain County, Ohio By: lia XnltD.>,j 6. BRENDAN J. MACKIN, # Assistant Prosecuting Attorney Lorain County Prosecutor's Office 225 Court Street, 3rd Floor Elyria, Ohio (440) PROOF OF SERVICE T iis is to certify that a c p f the Brief of Appellee was sent by regular U.S. Mail on the ^0 day of (?h, 2009 to Counsel for Appellant, Robert A. Dixon, Esq. and David L. Doughten, Esq., 4403 St. Clair Avenue, Cleveland, Ohio ^1J^ 1_. BRENDAN J. MACKIN Assistant Prosecuting Attorney 8