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April 6, 2026 Get Citation Alerts Download PDF Add Note

State v. Montgomery

Ohio Court of Appeals

• Citations: 2026 Ohio 1243
• Docket Number: 9-25-22

• Judges: Zimmerman

• Opinion

• Authorities (46)

• Cited By (0)

• Summaries (0)

• Similar Cases (14.5K)

• PDF

Syllabus

Telecommunications harassment; R.C. 2917.21(A)(1); Motion to Dismiss; Personal Jurisdiction; Self Representation; Crim.R. 44(B); Petty Offense; Hybrid representation; Sufficiency of the Evidence; Continuance. Defendant-appellant's telecommunications harassment conviction is based on sufficient evidence. The trial court did not err by denying the defendant-appellant's motion to dismiss the complaint because the trial court had personal jurisdiction over the defendant-appellant since he voluntarily appeared and pleaded not guilty to the charge in the complaint. Defendant-appellant's waiver of counsel was knowing, intelligent, and voluntary because the trial court substantially complied with the requirements of Crim.R. 44(B) by sufficiently inquiring in open court whether the defendant-appellant fully understood and relinquished his right to counsel. Standby counsel raising and arguing a Crim.R. 29 motion does not constitute improper hybrid representation.

Combined Opinion

[Cite as State v. Montgomery, 2026-Ohio-1243.]

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

STATE OF OHIO, CASE NO. 9-25-22

PLAINTIFF-APPELLEE,

v.

MARQUIS D. MONTGOMERY, OPINION AND
JUDGMENT ENTRY
DEFENDANT-APPELLANT.

Appeal from Marion Municipal Court
Trial Court No. CRB 24 02276

Judgment Affirmed

Date of Decision: April 6, 2026

APPEARANCES:

Howard A. Elliott for Appellant

Jeff Ratliff for Appellee
Case No. 9-25-22

ZIMMERMAN, P.J.

{¶1} Defendant-appellant, Marquis D. Montgomery (“Montgomery”),

appeals the July 14, 2025 judgment entry of sentence of the Marion Municipal

Court. For the reasons that follow, we affirm.

{¶2} The genesis of this case stems from a series of unwanted text messages

that Montgomery sent to Ashtan Morrison (“Morrison”), the mother of his children,

and her boyfriend, Cedrick Riley (“Riley”). After Montgomery repeatedly ignored

explicit directives from Morrison and Riley as well as law enforcement to cease

communication, Montgomery was charged on December 23, 2024 with

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

misdemeanor. Law enforcement attempted to serve Montgomery the summons and

complaint; however, because he “became belligerent and refused to sign or take the

criminal complaint [and] also did not let [law enforcement] explain the situation or

the criminal complaint,” law enforcement requested that an arrest warrant be issued.

(Doc. No. 3). Accordingly, the trial court issued a warrant on December 27, 2024.

Nevertheless, Montgomery voluntarily appeared for arraignment on December 30,

2024 and pleaded not guilty to the complaint, at which time the warrant was recalled.

{¶3} On April 25, 2025, Montgomery’s trial counsel filed a motion

requesting to withdraw from the representation due to a significant breakdown in

communication. After a hearing on April 28, 2025, Montgomery and his trial

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Case No. 9-25-22

counsel agreed to withdraw the motion, and Montgomery’s trial counsel continued

the representation.

{¶4} On May 6, 2025, Montgomery filed a motion requesting that the trial

court continue the trial date scheduled for May 14, 2025 because he had not yet

received subpoenaed records from T-Mobile. The trial court granted the motion and

continued trial until June 4, 2025.

{¶5} On June 2, 2025, Montgomery’s trial counsel filed a second motion to

withdraw from the representation. In the motion, Montgomery’s trial counsel noted

that he

came to Marion Municipal Court to meet with [Montgomery since he]
refused to travel to Upper Sandusky for any meeting. Rather than
meet and discuss strategy for Trial; [Montgomery] proceeded to state
he wanted to file ethical complaints against [his trial counsel] as well
as the Court. [Montgomery] indicated that he wanted [his trial
counsel] to withdraw from this matter [and] that he would like a new
attorney or potentially proceed Pro Se.

(Doc. No. 71). After conducting a hearing, the trial court permitted Montgomery to

represent himself but ordered his trial counsel to remain as standby counsel.

{¶6} On June 3, 2025, Montgomery, pro se, filed a motion to dismiss the

complaint, asserting insufficient service of process. The trial court denied

Montgomery’s motion prior to the commencement of trial.

{¶7} Following a jury trial on June 4, 2025, the jury found Montgomery

guilty of the charge alleged in the complaint. On July 10, 2025, the trial court

sentenced Montgomery to five years of community control sanctions, including 180

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Case No. 9-25-22

days in jail, with 170 days suspended conditioned on his compliance with his

community control sanctions.1

{¶8} On July 23, 2025, Montgomery filed a notice of appeal. He raises five

assignments of error for our review. For ease of our discussion, we will begin by

addressing Montgomery’s fourth assignment of error, followed by his first, third

fifth, and second assignments of error.

Fourth Assignment of Error

The trial Court lacks jurisdiction to proceed since the complaint
was never served upon the Defendant/Appellant making the trial
Court proceedings a nullity requiring the conviction to be
overturned and the matter remanded to the trial Court for
further proceedings.

{¶9} In his fourth assignment of error, Montgomery argues that the trial court

erred by denying his motion to dismiss due to improper service. Specifically, he

contends that the trial court lacked personal jurisdiction over him because the record

fails to demonstrate that he was ever properly served with a copy of the complaint.

Standard of Review

{¶10} “‘Jurisdiction is a prerequisite to a valid judgment.’” State v.

Thompson, 2021-Ohio-642, ¶ 9 (3d Dist.), quoting State ex rel. Post v. Speck, 2010-

Ohio-105, ¶ 10 (3d Dist.). “Appellate courts apply a de novo standard of review

when determining whether a trial court had jurisdiction to render a decision.” Id.,

1
The trial court filed its judgment entry of sentence on July 14, 2025.

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Case No. 9-25-22

citing State v. Stuber, 2018-Ohio-2809, ¶ 13 (3d Dist.) (“We review de novo the

existence of a trial court’s subject-matter and personal jurisdiction.”). “‘De novo

review is independent, without deference to the lower court’s decision.’” Id.,

quoting State v. Hudson, 2013-Ohio-647, ¶ 27 (3d Dist.).

Analysis

{¶11} Section 10, Article I of the Ohio Constitution provides, in its relevant

part, that an accused in a criminal action has the right “to demand the nature and

cause of the accusation against him, and to have a copy thereof . . . .” “Under this

provision, a criminal defendant is entitled to be served with a copy of the charging

document.” State v. Neff, 1994 Ohio App. LEXIS 367, *5 (11th Dist. Feb. 4, 1994).

See also State v. Harrison, 2021-Ohio-4465, ¶ 20 (discussing the application of

Crim.R. 4 and R.C. 2935.10). “Even though this is a constitutional right, it can be

waived by the defendant.” Neff at *5. See also Stuber at ¶ 18.

{¶12} “‘Personal jurisdiction goes to the court’s authority to render judgment

against a party to an action.’” Stuber at ¶ 14, quoting Cleveland v. Kutash, 2013-

Ohio-5124, ¶ 11 (8th Dist.). “A court acquires personal jurisdiction over a

‘defendant when: (1) service of process is completed over the defendant, (2) the

defendant voluntarily appears and submits to the court’s jurisdiction, or (3) the

defendant involuntarily submits to the court’s jurisdiction.’” Id., quoting Kutash at

¶ 11. “‘[A] challenge to personal jurisdiction is waivable by the defendant’s

voluntary submission at an appearance or by entering a plea.’” Id., quoting Kutash

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Case No. 9-25-22

at ¶ 12. See also State v. Pizzuto, 2018-Ohio-146, ¶ 22 (5th Dist.) (noting that it is

well established that, “[w]hen a defendant appears in the trial court and enters a plea

of not guilty to charges, he waives any objection to the court’s exercise of personal

jurisdiction over him”).

{¶13} Decisively, the trial court had personal jurisdiction over Montgomery

since he voluntarily appeared at arraignment and pleaded not guilty to the charge in

the complaint. Accord Stuber at ¶ 18. In other words, by appearing and entering a

plea to the charge in the complaint, Montgomery waived any objection to the trial

court’s exercise of personal jurisdiction over him. Accord Pizzuto at ¶ 22.

Consequently, the trial court did not err by denying Montgomery’s motion to

dismiss the complaint.

{¶14} Montgomery’s fourth assignment of error is overruled.

First Assignment of Error

The trial Court committed error by forcing the
Defendant/Appellant to represent himself rather than to continue
with counsel for which he had repeatedly expressed his
dissatisfaction with his services. In doing so the Court did not
properly advise the Defendant/Appellant or make inquiry of the
Defendant/Appellant as to what it meant to proceed to represent
himself and the conviction need[s] to be reversed and set aside.

{¶15} In his first assignment of error, Montgomery argues that his waiver of

the right to counsel was invalid because he was required to proceed pro se after the

trial court declined to appoint substitute counsel. Specifically, he contends that his

waiver was not knowingly, intelligently, and voluntarily made because the trial

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Case No. 9-25-22

court failed to conduct a sufficient inquiry to adequately advise him of the dangers

and disadvantages of self-representation.

Standard of Review

{¶16} “We review de novo whether a defendant knowingly, voluntarily, and

intelligently waived his right to counsel.” State v. Godley, 2018-Ohio-4253, ¶ 9 (3d

Dist.). Again, “[d]e novo review is independent, without deference to the lower

court’s decision.” Hudson, 2013-Ohio-647, at ¶ 27 (3d Dist.).

Analysis

{¶17} “‘The Sixth Amendment to the United States Constitution provides

that an accused shall have the right “to have the Assistance of Counsel for his

defense.”’” State v. Logan, 2017-Ohio-8932, ¶ 34 (3d Dist.), quoting State v.

Owens, 2008-Ohio-4161, ¶ 9 (3d Dist.), quoting the U.S. Const., amend. VI. “‘The

Sixth Amendment right to counsel extends to misdemeanor cases that can result in

the imposition of a jail sentence.’” State v. Boatwright, 2020-Ohio-5068, ¶ 10 (7th

Dist.), quoting State v. Koons, 2007-Ohio-4985, ¶ 13 (7th Dist.).

{¶18} “[T]he United States Supreme Court has also recognized that the Sixth

Amendment right to the assistance of counsel implicitly embodies a ‘correlative

right to dispense with a lawyer’s help.’” State v. Martin, 2004-Ohio-5471, ¶ 23,

quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942). “While

a defendant has a right to counsel, the defendant may also waive that right when the

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Case No. 9-25-22

waiver is voluntary, knowing, and intelligent.” State v. Petaway, 2006-Ohio-2941,

¶ 8 (3d Dist.).

{¶19} “Crim.R. 44 also addresses the appointment of counsel.” State v.

Conard, 2024-Ohio-1906, ¶ 13 (2d Dist.). “Under Crim.R. 44(B), the trial court

may assign counsel to represent a defendant charged with a petty offense who is

unable to obtain counsel.” (Emphasis in original.) Id., citing Crim.R. 44(A)

(contrasting that defendants charged with a serious offense shall be assigned counsel

“to represent the defendant at every stage of the proceedings” unless the right to

counsel is waived). Further, Crim.R. 44(B), which governs the appointment of

counsel in petty offense cases, provides that a defendant may not be sentenced

“unless after being fully advised by the court, he knowingly, intelligently, and

voluntarily waives assignment of counsel.”

{¶20} “‘A petty offense is defined as “a misdemeanor other than a serious

offense.”’” State v. Medford, 2025-Ohio-140, ¶ 18 (3d Dist.), quoting State v.

Gerken, 2023-Ohio-2244, ¶ 29 (6th Dist.), quoting Crim.R. 2(D). “‘A serious

offense is “any felony, and any misdemeanor for which the penalty prescribed by

law includes confinement for more than six months.”’” Id., quoting Gerken at ¶ 29,

quoting Crim.R. 2(C). “‘In petty offense cases, waiver of counsel shall be made in

open court and recorded.’” Id., quoting Gerken at ¶ 29, citing Crim.R. 22 (asserting

that “[i]n petty offenses all waivers of counsel required by Rule 44(B) shall be

recorded”) and Crim.R. 44(C) (stating that “[w]aiver of counsel shall be in open

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Case No. 9-25-22

court and the advice of waiver shall be recorded as provided in Rule 22”). “‘[I]n

serious offense cases, the waiver shall be in writing, made in open court, and

recorded.’” Id., quoting Gerken at ¶ 29.

{¶21} “‘“The requirements of Crim.R. 44 and 22 are mandatory, and failure

to [substantially] comply with these procedures constitutes error.”’” State v.

Thompson, 2009-Ohio-185, ¶ 10 (3d Dist.), quoting State v. Constable, 2005-Ohio-

1239, ¶ 31 (12th Dist.), quoting Mason v. Krivinsky, 1998 Ohio App. LEXIS 2659,

1998 WL 314384, *23 (12th Dist. June 15, 1998). See also Akron v. Ragle, 2005-

Ohio-590, ¶ 9 (9th Dist.) (applying the substantial compliance standard to waivers

of counsel in petty offense cases). “Substantial compliance means that under the

totality of the circumstances the defendant subjectively understands the implications

of . . . the rights he is waiving.” State v. Nero, 56 Ohio St.3d 106, 108 (1990).

{¶22} “‘In order to establish an effective waiver of right to counsel, the trial

court must make sufficient inquiry to determine whether defendant fully

understands and intelligently relinquishes that right.’” Godley, 2018-Ohio-4253, at

¶ 11 (3d Dist.), quoting State v. Gibson, 45 Ohio St.2d 399 (1976), paragraph two

of the syllabus. See also Ragle at ¶ 9 (9th Dist.) (applying the same standard to

petty offense cases). For a defendant’s waiver of counsel to be valid, it must be

made with a clear understanding of (1) the nature of the charges and any included

statutory offenses; (2) the range of allowable punishments; (3) possible defenses

and mitigating circumstances; and (4) all other facts essential to a broad

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Case No. 9-25-22

understanding of the entire matter. Godley at ¶ 11. However, there is no mandatory

script or strict formula for advising a defendant of the dangers of self-representation.

Id. Instead, the necessary inquiry is fluid and depends on case-specific factors, such

as the stage of the proceeding, the complexity of the charge, and the defendant’s

education and overall sophistication. Id. In other words, the sufficiency of the trial

court’s inquiry depends on the totality of the circumstances of the case. Id.

{¶23} In this case, Montgomery contends that his decision to proceed pro se

was not knowing, intelligent, or voluntary because it was precipitated by the trial

court’s refusal to appoint substitute counsel just days before trial. He further argues

that the trial court’s colloquy failed to cure this defect because it lacked the depth

necessary to adequately advise him of the dangers of self-representation, the

complexities of the charges, the allowable punishments, and his potential defenses.

We disagree.

{¶24} Based on our review of the totality of the circumstances present in the

record, we conclude that Montgomery knowingly, intelligently, and voluntarily

waived his right to counsel. See Logan, 2017-Ohio-8932, at ¶ 36 (3d Dist.).

Critically, the record reveals that the trial court substantially complied with the

requirements of Crim.R. 44(B) by sufficiently inquiring (in open court) whether

Montgomery fully understood and relinquished his right to counsel. See

Boatwright, 2020-Ohio-5068, at ¶ 12 (7th Dist.) (explaining that a first-degree

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Case No. 9-25-22

misdemeanor carrying a maximum penalty of 180 days is a petty offense, meaning

the defendant’s waiver of counsel is not required to be in writing).

{¶25} Indeed, while the trial court refused Montgomery’s eleventh-hour

request for substitute counsel, it provided him the alternative of proceeding pro se

with standby assistance. Importantly, the record reflects that, before accepting

Montgomery’s waiver, the trial court engaged in a thorough colloquy with

Montgomery to ensure he understood the gravity of his decision. The trial court

explicitly advised Montgomery of the charges, the potential penalties, and the strict

requirement that he comply with the same procedural rules as an attorney. See State

v. Lee, 2025-Ohio-875, ¶ 25 (5th Dist.) (noting that Ohio courts do not require trial

judges to explain potential defenses or act as pseudo-counsel during a waiver

colloquy). Furthermore, the trial court thoroughly cautioned him about the inherent

dangers of self-representation and ensured that standby counsel remained present

and available throughout the trial in case assistance was needed. Compare Ragle,

2005-Ohio-590, at ¶ 13 (9th Dist.). See State v. Hackett, 2020-Ohio-6699, ¶ 20

(noting that the discretionary appointment of standby counsel serves as a “great aid”

to ensure that a self-representing defendant is “not left totally adrift”). Despite these

clear warnings regarding the pitfalls of proceeding pro se, Montgomery

unequivocally asserted his desire to represent himself.

{¶26} Moreover, the nature of the charge against Montgomery—

telecommunications harassment, a first-degree misdemeanor—is relatively

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Case No. 9-25-22

straightforward and easily grasped. It does not involve highly complex or arcane

legal concepts that would preclude a layperson from understanding the proceedings.

Compare Ragle at ¶ 14 (determining that the defendant’s waiver was valid where

the trial court sufficiently explained the dangers of self-representation and the

misdemeanor charge “was in no way complicated”). Furthermore, because

Montgomery sought to represent himself just two days before trial, he had already

benefited from the assistance of appointed counsel throughout the discovery and

pretrial phases, giving him a broad understanding of the State’s evidence and the

overall matter. Compare State v. Yeager, 2018-Ohio-574, ¶ 8 (9th Dist.).

{¶27} For these reasons, we conclude that Montgomery knowingly,

intelligently, and voluntarily waived his right to counsel.

{¶28} Montgomery’s first assignment of error is overruled.

Third Assignment of Error

The trial Court improperly allowed hybrid representation in this
matter when they permitted the standby counsel to act as counsel
for the pro se Defendant/Appellant, requiring the convictions to
be set aside and the matter remanded to the trial court for further
proceedings.

{¶29} In his third assignment of error, Montgomery argues that the trial court

erred by improperly permitting hybrid representation during the jury trial. In

particular, he contends that the trial court should not have permitted his standby

counsel to argue the Crim.R. 29 motion for acquittal on his behalf while he was

otherwise exercising his right to self-representation.

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Case No. 9-25-22

Standard of Review

{¶30} Because the appointment and scope of standby counsel are matters left

to the trial court’s sound discretion, we review a trial court’s decisions concerning

hybrid representation for an abuse of discretion. Hackett, 2020-Ohio-6699, at ¶ 20;

State v. Lucas, 2025-Ohio-1918, ¶ 58 (4th Dist.). But see State v. McAlpin, 2022-

Ohio-1567, ¶ 65 (noting that an actual violation of a defendant’s right to self-

representation constitutes structural error). An abuse of discretion suggests the trial

court’s decision is unreasonable, arbitrary, or unconscionable. State v. Adams, 62

Ohio St.2d 151, 157-158 (1980).

{¶31} However, a defendant who fails to object to standby counsel’s specific

participation during the proceedings forfeits all but plain error on appeal. See State

v. Terrell, 2022-Ohio-4312, ¶ 35 (6th Dist.). 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.” To prevail on a claim of plain error, the appellant

bears the burden of showing that an obvious deviation from a legal rule occurred

and that, but for this error, the outcome of the trial would have been different.

Terrell at ¶ 35. “Plain error ‘is to be taken with the utmost caution, under

exceptional circumstances, and only to prevent a manifest miscarriage of justice.’”

Id., quoting State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus.

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Case No. 9-25-22

Analysis

{¶32} While a criminal defendant has a constitutional right to self-

representation, a trial court may appoint standby counsel to assist the pro se

defendant and to assume representation if the termination of self-representation

becomes necessary. Hackett at ¶ 9. But see State v. Pinckney, 2017-Ohio-2836, ¶

6 (9th Dist.) (“There is no constitutional right to hybrid representation.”). “Unlike

hybrid representation—where the defendant and attorney act as co-counsel sharing

trial duties—standby counsel assists an otherwise pro se defendant strictly upon

request or in the event the defendant cannot continue self-representation.” Terrell

at ¶ 34.

{¶33} “[W]hen a court appoints standby counsel, there are limits on how

actively standby counsel can be involved.” Hackett at ¶ 10. “Instances where

standby counsel is overly involved in the proceedings and functions essentially as

co-counsel with the self-representing defendant—so-called ‘hybrid

representation’—pose several potential problems.” Id. “First, hybrid representation

creates confusion as to who is the ultimate decision-maker [and] may lead to ethical

concerns for counsel if there is disagreement over trial strategy and presents

courtroom-management challenges for the trial judge.” Id. “Second, hybrid

representation raises serious questions about whether the defendant is representing

himself or is represented by counsel, because there is no clear boundary line between

hybrid representation and self-representation [and] complicates the question

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Case No. 9-25-22

whether the defendant has waived the right to representation.” Id. “And third . . .

if standby counsel is too actively involved, a defendant’s right to self-representation

may be violated.” Id.

{¶34} Nevertheless, “nothing prevents standby counsel from providing

advice to a criminal defendant on evidentiary or procedural matters, so long as the

involvement of standby counsel does not reach the level of ‘unsolicited and

excessively intrusive participation’ that is at odds with a criminal defendant’s right

to self-representation.” Id. at ¶ 20, quoting McKaskle v. Wiggins, 465 U.S. 168, 177

(1984).

{¶35} In this case, Montgomery contends that the trial court improperly

allowed his standby counsel to engage in hybrid representation by raising and

arguing a Crim.R. 29 motion. However, because Montgomery did not object to

standby counsel’s participation, he waived all but plain error on appeal. Based on

our review of the record, standby counsel’s limited participation in the proceedings

did not constitute plain error.

{¶36} To begin with, Montgomery failed to articulate any argument as to

how standby counsel’s presentation of the Crim.R. 29 motion affected the outcome

of his trial, and we will not construct one for him. See App.R. 16(A)(7). Compare

Yeager, 2018-Ohio-574, at ¶ 17 (9th Dist.); Terrell, 2022-Ohio-4312, at ¶ 36 (6th

Dist.). Nevertheless, we see no resulting prejudice since Montgomery conducted

the vast majority of his own defense, and standby counsel’s isolated presentation of

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Case No. 9-25-22

a procedural motion did not transform the proceedings into an impermissible hybrid

representation. Rather, standby counsel’s presentation of the Crim.R. 29 motion

constituted the exact type of assistance on procedural matters permitted. See State

v. McAlpin, 2022-Ohio-1567, ¶ 309, citing Hackett at ¶ 61 (Stewart, J., concurring)

(noting that standby counsel should assist in overcoming procedural or evidentiary

obstacles and help ensure the defendant’s compliance with basic courtroom

procedure and protocol).

{¶37} Indeed, because the motion was argued outside the presence of the jury

and properly tested the legal sufficiency of the State’s evidence, standby counsel’s

limited participation was neither unsolicited nor excessively intrusive, and therefore

did not compromise Montgomery’s defense. See Yeager at ¶ 16-17 (rejecting a

plain-error challenge to standby counsel’s participation in arguing a Crim.R. 29

motion because the appellant failed to articulate how the hybrid representation

prejudiced him or affected the outcome of the trial). Moreover, it is not apparent on

the face of the record that there was any actual conflict between Montgomery and

his standby counsel regarding the motion. Accord id. at ¶ 17. That is, because a

Crim.R. 29 motion inherently benefits the defense, standby counsel’s presentation

of the motion did not undermine Montgomery’s overarching trial strategy.

Therefore, Montgomery’s hybrid representation argument is without merit.

{¶38} Montgomery’s third assignment of error is overruled.

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Case No. 9-25-22

Fifth Assignment of Error

The conviction herein must be overturned because of the failure-
of the State to meet its burden and provide sufficient evidence as
to the essential elements of the offense of telephone harassment
where the victim had made repeated telecommunication contacts
to the Defendant/ Appellant and sufficient evidence to conclude
improper contacts by the Defendant/Appellant, requiring the
conviction to be set aside and the matter be remanded to the trial
Court for dismissal of the action.

{¶39} In his fifth assignment of error, Montgomery argues that his

telecommunications harassment conviction is based on insufficient evidence.

Specifically, he contends that the State failed to prove that he acted with the requisite

purpose to harass, intimidate, or abuse the alleged victim.

Standard of Review

{¶40} “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.” State v. Jenks, 61 Ohio

St.3d 259 (1981), paragraph two of the syllabus, superseded by state constitutional

amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997). 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.” Id. “In deciding if the

evidence was sufficient, we neither resolve evidentiary conflicts nor assess the

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Case No. 9-25-22

credibility of witnesses, as both are functions reserved for the trier of fact.” State v.

Jones, 2013-Ohio-4775, ¶ 33 (1st Dist.). See also State v. Berry, 2013-Ohio-2380,

¶ 19 (3d Dist.) (“Sufficiency of the evidence is a test of adequacy rather than

credibility or weight of the evidence.”), citing State v. Thompkins, 78 Ohio St.3d

380, 386 (1997).

Sufficiency of the Evidence

{¶41} As an initial matter, the record reveals that Montgomery failed to

renew his Crim.R. 29(A) motion at the conclusion of his case-in-chief or at the

conclusion of all the evidence.

In order to preserve the issue of sufficiency on appeal, this court has
held that “[w]hen a defendant moves for acquittal at the close of the
state’s evidence and that motion is denied, the defendant waives any
error which might have occurred in overruling the motion by
proceeding to introduce evidence in his or her defense. In order to
preserve a sufficiency of the evidence challenge on appeal once a
defendant elects to present evidence on his behalf, the defendant must
renew his Crim.R. 29 motion at the close of all the evidence.”

State v. Hurley, 2014-Ohio-2716, ¶ 37 (3d Dist.), quoting State v. Edwards, 2004-

Ohio-4015, ¶ 6 (3d Dist.). Based on this court’s precedent, Montgomery’s failure

to renew his Crim.R. 29(A) motion at the conclusion of his case-in-chief or at the

conclusion of all evidence waived all but plain error on appeal. Id.

{¶42} “However, ‘[w]hether a sufficiency of the evidence argument is

reviewed under a prejudicial error standard or under a plain error standard is

academic.’” Id. at ¶ 38, citing Perrysburg v. Miller, 2003-Ohio-4221, ¶ 57 (6th

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Case No. 9-25-22

Dist.), quoting State v. Brown, 2000 Ohio App. LEXIS 3132, *21 (2d Dist. July 14,

2000). “Regardless of the standard used, ‘a conviction based on legally insufficient

evidence constitutes a denial of due process, and constitutes a manifest injustice.’”

Id., quoting Thompkins, 78 Ohio St.3d at 386-87. Accordingly, we will proceed to

determine whether the State presented sufficient evidence to support Montgomery’s

telecommunications harassment conviction. See id.

{¶43} Montgomery was convicted of telecommunications harassment in

violation of R.C. 2917.21, which provides, in its relevant part, that

[n]o person shall knowingly make or cause to be made a
telecommunication, or knowingly permit a telecommunication to be
made from a telecommunications device under the person’s control,
to another, if the caller . . . [m]akes the telecommunication with
purpose to harass, intimidate, or abuse any person at the premises to
which the telecommunication is made, whether or not actual
communication takes place between the caller and a recipient.

R.C. 2917.21(A)(1).

{¶44} “A person acts knowingly, regardless of purpose, when the person is

aware that the person’s conduct will probably cause a certain result or will probably

be of a certain nature. A person has knowledge of circumstances when the person

is aware that such circumstances probably exist.” R.C. 2901.22(B). As used under

R.C. 2917.21(A), “‘[c]aller’ means the person . . . who makes or causes to be made

a telecommunication or who permits a telecommunication to be made from a

telecommunications device under that person’s control.” R.C. 2917.21(G)(2).

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Case No. 9-25-22

{¶45} A “‘[t]elecommunication’ means the origination, emission,

dissemination, transmission, or reception of data, images, signals, sounds, or other

intelligence or equivalence of intelligence of any nature over any communications

system by any method, including, but not limited to, a fiber optic, electronic,

magnetic, optical, digital, or analog method.” R.C. 2913.01(X). Likewise, a

“‘[t]elecommunications device’ means any instrument, equipment, machine, or

other device that facilitates telecommunication, including, but not limited to, a

computer, computer network, computer chip, computer circuit, scanner, telephone,

cellular telephone, pager, personal communications device, transponder, receiver,

radio, modem, or device that enables the use of a modem.” R.C. 2913.01(Y).

{¶46} “Although none of the individual terms ‘abuse,’ ‘threaten,’ or ‘harass’

have been statutorily defined within the meaning of R.C. 2917.21, ‘“[t]he fact that

the statute does not place legal definitions on each of these terms demonstrates that

the General Assembly intended to prohibit conduct that is easily definable by the

common everyday meaning of these words.”’” State v. Shuck, 2020-Ohio-6989, ¶

15 (9th Dist.), quoting State v. Rasawehr, 2020-Ohio-429, ¶ 29 (3d Dist.), quoting

State v. Stanley, 2006-Ohio-4632, ¶ 13 (10th Dist.). “‘Abuse’ may be defined as

‘[t]o injure (a person) physically or mentally.’” Id., quoting Black’s Law Dictionary

(11th Ed. 2019). A threat constitutes an expressed intention to inflict evil, injury,

or damage on another person, usually as retribution or punishment, and broadly

encompasses almost any expression of intent to harm someone else regardless of

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whether the threatened act is itself criminal. Id. “Finally, ‘harassment’ may be

defined as ‘[w]ords, conduct, or action (usu[ally] repeated or persistent) that, being

directed at a specific person, annoys, alarms, or causes substantial emotional distress

to that person and serves no legitimate purpose; purposeful vexation.’” Id., quoting

Black’s Law Dictionary (11th Ed. 2019).

{¶47} “The telecommunications-harassment statute ‘focuses on the caller

rather than on the content of the speech; it is the intent with which the call is made

that establishes the criminality of the conduct.’” State v. White, 2025-Ohio-306, ¶

15 (5th Dist.), quoting State v. Golga, 2024-Ohio-1410, ¶ 6 (9th Dist.). “The inquiry

is not whether the recipient was in fact abused, intimidated, or harassed by the

telecommunication, but whether the purpose of the caller was to abuse, intimidate,

or harass the recipient.” (Emphasis added.) Id. “A person acts purposely when it

is the person’s specific intention to cause a certain result, or, when the gist of the

offense is a prohibition against conduct of a certain nature, regardless of what the

offender intends to accomplish thereby, it is the offender’s specific intention to

engage in conduct of that nature.” R.C. 2901.22(A). See Shuck at ¶ 14 (“The terms

‘intent’ and ‘purpose’ are synonymous in the context of culpable mental states.”).

“‘In the absence of direct evidence, a defendant’s intent to abuse, [intimidate], or

harass may be established by the surrounding facts and circumstances.’” White at ¶

15, quoting Golga at ¶ 6.

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{¶48} In support of his sufficiency-of-the-evidence challenge, Montgomery

argues that a rational trier of fact could not have found that he made the

telecommunications with the specific purpose to harass, intimidate, or abuse any

victim in this case. That is, Montgomery contends that the State failed to establish

the requisite criminal intent because Riley actively participated in and initiated

portions of the exchange, demonstrating that the communications were mutual

rather than unwanted. Furthermore, he asserts that the actual content of his

messages was legally insufficient to constitute harassment, characterizing his

statements as a mere threat of civil litigation rather than the type of abusive or

intimidating conduct penalized by the statute.

{¶49} However, as an initial matter, Montgomery’s argument that his

messages did not contain inherently prohibited language misconstrues the nature of

the offense. See Shuck at ¶ 16. While the use of specific words is not an element

of the offense, the abusive content of his messages constitutes circumstantial

evidence of his intent. See id. at ¶ 14. Viewing the surrounding facts and

circumstances of Montgomery’s messages in a light most favorable to the

prosecution, a rational trier of fact could easily infer that Montgomery’s underlying

purpose was to harass, intimidate, or abuse the victims. Compare State v. Pierce,

2024-Ohio-5357, ¶ 22 (12th Dist.) (“Notwithstanding appellant’s claim that his

telecommunications were simply to express his dissatisfaction with the management

and closure of the library, the substantial number of telecommunications and their

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aggressive tone plainly evidenced appellant’s purpose to harass and intimidate [the

victim]”).

{¶50} Moreover, beyond the nature of the messages themselves, the State

presented evidence that Montgomery continued to contact Morrison and Riley with

messages after receiving multiple, explicit warnings to stop. See State v. Hawks,

2025-Ohio-5407, ¶ 26 (5th Dist.). Specifically, Officer Devon Mallory (“Officer

Mallory”) of the Marion Police Department testified that he responded to the

harassment complaint and personally observed both Morrison and Riley send text

messages to Montgomery explicitly warning him to cease contact. See Pierce at ¶

22 (noting that “[t]estimony from witnesses that a defendant was previously told not

to call the recipient may also be evidence pertinent to the defendant’s intent when

placing the calls”). In addition to the warnings from the victims, Officer Mallory

directly contacted Montgomery by phone to reiterate that he must stop

communicating with both individuals. Despite receiving these clear, repeated

directives from law enforcement and the victims themselves, Montgomery

completely disregarded the warnings and continued to message Riley. (See State’s

Ex. 3); Pierce at ¶ 22 (explaining that, “[a]lthough a violation of R.C. 2917.21 does

not require multiple communications, the fact that a defendant made numerous calls

or sent numerous communications is often indicative of the defendant’s specific

purpose to harass”).

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{¶51} Consequently, the State presented sufficient evidence from which the

jury could find that Montgomery made the telecommunications with the specific

purpose to harass, intimidate, or abuse. Thus, Montgomery’s telecommunications

harassment conviction is based on sufficient evidence.

{¶52} Montgomery’s fifth assignment of error is overruled.

Second Assignment of Error

The trial Court abused its discretion by failing to grant the
Defendant/Appellant’s request for continuance, when the Court
appointed counsel was allowed to withdraw two (2) days before
the trial. There was no indication that the Defendant/Appellant
was doing this for purposes to delay but rather due to issues with
the adequacy of this counsel.

{¶53} In his second assignment of error, Montgomery asserts that the trial

court erred by denying his motion to continue the jury trial. Specifically, he

contends that, because his court-appointed counsel was permitted to withdraw just

two days before the scheduled proceedings, the trial court abused its discretion by

refusing to grant a delay and forcing him to represent himself without adequate time

to prepare.

Standard of Review

{¶54} Generally, an appellate court reviews a trial court’s denial of a

continuance under an abuse of discretion standard. State v. Ames, 2019-Ohio-2632,

¶ 29 (3d Dist.). See also Warren v. Stoutamire, 2000 Ohio App. LEXIS 5922, *13

(11th Dist. Dec. 15, 2000) (“The right of a defendant to a continuance upon the

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withdrawal of counsel is not absolute, and the decision to grant such a continuance

rests with the sound discretion of the trial court.”). Again, an abuse of discretion

suggests the trial court’s decision is unreasonable, arbitrary, or unconscionable.

Adams, 62 Ohio St.2d 151, at 157-158.

{¶55} However, a defendant’s failure to formally request a continuance

waives all but plain error on appeal. See State v. Chappell, 2010-Ohio-112, ¶ 6 (2d

Dist.); In re C.H., 2020-Ohio-716, ¶ 81 (3d Dist.). Again, to prevail on a claim of

plain error, the appellant must show that, but for the trial court’s alleged error, the

outcome of the proceeding clearly would have been different. State v. Waddell, 75

Ohio St.3d 163, 166 (1996). “We take notice of plain error ‘with the utmost caution,

under exceptional circumstances and only to prevent a miscarriage of justice.’”

State v. Heimberger, 2018-Ohio-636, ¶ 28 (3d Dist.), quoting State v. Long, 53 Ohio

St.2d 91 (1978), paragraph three of the syllabus.

Analysis

{¶56} Typically, when evaluating a motion for a continuance, a trial court

should consider factors such as the length of the requested delay, prior continuance

requests, inconvenience to parties, witnesses, counsel, and the court, and whether

the delay is for legitimate reasons or is dilatory, purposeful, or contrived. Ames at

¶ 30. The trial court must also consider whether the defendant contributed to the

circumstances leading to the request. Id. There are no mechanical tests for deciding

if a continuance denial violates due process; the answer depends on the specific

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Case No. 9-25-22

circumstances of each case and the reasons presented to the trial court at the time of

the request. Id. at ¶ 29. These considerations are weighed against concerns like the

trial court’s right to control its docket and the public’s interest in the prompt dispatch

of justice. Id. See also State v. Pattson, 2010-Ohio-5755, ¶ 19 (2d Dist.) (“In

determining whether a trial court abused its discretion when ruling on a motion for

continuance, a reviewing court must weigh any potential prejudice to the defendant

against the trial court’s ‘right to control its own docket and the public’s interest in

the prompt and efficient dispatch of justice.’”), quoting State v. Unger, 67 Ohio

St.2d 65, 67 (1981).

{¶57} While the parties dispute whether Montgomery actually requested a

continuance, our review of the hearing transcript reveals no affirmative request for

such relief. Compare State v. James, 1998 Ohio App. LEXIS 312, *5 (5th Dist. Jan.

20, 1998) (“noting that the record indicates that at no time during the proceedings

did appellant ask the trial court for a continuance”). Thus, because Montgomery

failed to formally move for a continuance, he waived all but plain error on appeal.

See State v. Downing, 2020-Ohio-3984, ¶ 8 (2d Dist.).

{¶58} Based on our review of the record, we conclude that the trial court did

not err—let alone commit plain error—by failing to sua sponte continue the

proceedings just two days before trial. See State v. Stembridge, 2008-Ohio-1054, ¶

14 (9th Dist.); James at *6 (concluding that James “failed to establish that the trial

court [erred] by not sua sponte granting a continuance especially since appellant

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never requested a continuance and failed to have his allegedly retained counsel

present on the day of trial”). Critically, the eleventh-hour conflict was entirely of

Montgomery’s own making, and the record indicates his strategic disagreements

likely would have occurred with any substitute counsel. See State v. Wiley, 2001

Ohio App. LEXIS 5139, *6-7 (2d Dist. Nov. 16, 2001).

{¶59} Moreover, considering our resolution of Montgomery’s other

assignments of error, there is no evidence to suggest that the outcome of his trial

clearly would have been different had he been granted a continuance. See

Stoutamire, 2000 Ohio App. LEXIS 5922, at *15 (11th Dist. Dec. 15, 2000)

(concluding that “there is no basis for drawing the conclusion that had appellant

been granted a continuance to obtain substitute counsel, the outcome would have

been different”); In re C.H., 2020-Ohio-716, at ¶ 84 (3d Dist.) (determining that

“[u]nder the facts and circumstances of this case, we cannot find that the trial court

was required to sua sponte grant a continuance”). Thus, there is no error, let alone

plain error, with the trial court’s decision to proceed to trial.

{¶60} Montgomery’s second assignment of error is overruled.

{¶61} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

MILLER and WILLAMOWSKI, J.J., concur.

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JUDGMENT ENTRY

For the reasons stated in the opinion of this Court, the assignments of error

are overruled and it is the judgment and order of this Court that the judgment of the

trial court is affirmed with costs assessed to Appellant for which judgment is hereby

rendered. The cause is hereby remanded to the trial court for execution of the

judgment for costs.

It is further ordered that the Clerk of this Court certify a copy of this Court’s

judgment entry and opinion to the trial court as the mandate prescribed by App.R.

27; and serve a copy of this Court’s judgment entry and opinion on each party to the

proceedings and note the date of service in the docket. See App.R. 30.

William R. Zimmerman, Judge

Mark C. Miller, Judge

John R. Willamowski, Judge

DATED:
/hls

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