State v. Hartman

[Cite as State v. Hartman, 2026-Ohio-4500.] IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY STATE OF OHIO : : C.A. No. 30734 Appellee : : Trial Court Case No. 24CRB01234 v. : : (Criminal Appeal from Municipal Court) GARY D. HARTMAN : : FINAL JUDGMENT ENTRY & Appellant : OPINION : ........... Pursuant to the opinion of this court rendered on November 13, 2026, the judgment of the trial court is affirmed as modified in accordance with the opinion. Costs to be paid as stated in App.R. 24. Pursuant to Ohio App.R. 30(A), the clerk of the court of appeals shall immediately send a copy of the court’s ruling to each party and note that action on the docket. Additionally, pursuant to App.R. 27, the clerk of the court of appeals shall send a certified copy of this judgment, which constitutes a mandate, to the clerk of the trial court and note the service on the appellate docket. For the court, MICHAEL L. TUCKER, JUDGE HUFFMAN, J., and HANSEMAN, J., concur.  OPINION MONTGOMERY C.A. No. 30734 LUCAS W. WILDER, Attorney for Appellant JOHN D. EVERETT, Attorney for Appellee TUCKER, J. {¶ 1} Gary D. Hartman, a.k.a. Geraldine Hartman, appeals from her conviction on one count of violating a protection order in violation of R.C. 2919.27(A).1 {¶ 2} Hartman challenges the sufficiency and weight of the evidence to sustain her conviction. She also alleges ineffective assistance of trial counsel and challenges the conditions of a probation sanction imposed on her. {¶ 3} We conclude that Hartman’s conviction was supported by legally sufficient evidence and was not against the weight of the evidence. We also see no ineffective assistance of counsel. We agree, however, that the trial court imposed an overly broad no- contact provision as a condition of probation. Accordingly, we modify the trial court’s judgment by narrowing the scope of the no-contact order. As so modified, the trial court’s judgment is affirmed. I. Background {¶ 4} Hartman is the estranged spouse of Y.H., the victim. Sometime after their separation, Y.H. obtained a March 2024 civil protection order against Hartman. In separate cases, Hartman later was charged with two misdemeanor counts of violating the protection order by remotely locking Y.H.’s son’s cell phone and messaging Y.H. through a television app known as “Plex.” 1 Hartman’s first name legally was changed from Gary to Geraldine during the proceedings below. We refer to Hartman as “she” or “her” because those are the pronouns used by the parties. 2  {¶ 5} The two cases proceeded to trial before a jury, which found Hartman not guilty of the cell phone violation but guilty of violating the protection order by contacting Y.H. through the Plex app. That violation involved Hartman remotely changing Y.H.’s Plex account profile to a personal message. The trial court sentenced Hartman to 180 days in jail with 160 days suspended and with credit for seven days served. The trial court ordered 60 days of electronic monitoring upon Hartman’s release. It placed her on two years of supervised probation with conditions including an order to have no contact with Y.H., Y.H.’s two children who lived with her, and three other people. Hartman timely appealed, advancing three assignments of error. II. Analysis {¶ 6} The first assignment of error states: The verdict was not supported with the sufficiency of the evidence or the weight of the evidence. {¶ 7} Hartman challenges the sufficiency and weight of the evidence to sustain her conviction for violating the protection order by contacting Y.H. through the Plex app. In support, she cites her own testimony that she initially had used her own personal ID, email, and password to set up the Plex account. Hartman also cites her testimony that she did not believe Y.H. could access the account, that the offending message had been sent around November 2023 as part of a therapeutic ritual by Hartman, and that Y.H. had to take affirmative steps to find it. Hartman claims the record lacks evidence that she recklessly contacted Y.H. {¶ 8} “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 3 guilt beyond a reasonable doubt. The 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.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. {¶ 9} Our analysis is different when reviewing a manifest-weight argument. When a conviction is challenged on appeal as being against the weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider witness credibility, and determine whether, in resolving conflicts in the evidence, the trier of fact “clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). Although a reviewing court must consider witness credibility, it also must “give some deference to a fact-finder’s credibility determinations.” (Citations omitted.) State v. Reillo, 2026-Ohio-2701, ¶ 3. A judgment should be reversed as being against the manifest weight of the evidence “only in the exceptional case in which the evidence weighs heavily against the conviction.” State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1983). {¶ 10} With the foregoing standards in mind, we conclude that Hartman’s conviction was supported by legally sufficient evidence and was not against the manifest weight of the evidence. At trial, Y.H. testified that Hartman had set up the Plex account years earlier. Y.H. explained that the Plex app worked like a streaming service, enabling viewers to access movies, videos, and even personal pictures. Y.H. stated that multiple household members could access the app through individual personal accounts with distinct user IDs. Y.H. testified that she accessed her account on August 15, 2024, and discovered that her user ID had been changed to the words, “I miss you Eve.” Her username also had been changed to the following message: “I miss you and the boys terribly and cry everyday. I cannot bring 4 myself to hate you, and I will love you forever. The path you’ve chosen does not include me. Sayonara, Koibito.” Y.H. testified that “Koibito” was a nickname that Hartman had given her. Y.H. stated that the message had not been there when she had accessed the Plex account “maybe a few weeks” earlier. Y.H. testified that the Plex app had never been exclusively Hartman’s account. {¶ 11} Y.H.’s son, H.H., also testified, explaining that the Plex app had “different accounts so [users could] partition how people are able to access certain videos[.]” According to H.H., the separate accounts within the app enabled each user to access his or her own favorite content. H.H. recalled his family’s Plex app having four or five distinct user accounts. {¶ 12} For her part, Hartman testified that she wrote the message to Y.H. shortly after their separation. Hartman’s purpose was to help her process her own feelings. Hartman insisted that she never intended for Y.H. to see the message. Hartman stated that she did not believe Y.H. could access the account because Hartman had changed the password. {¶ 13} Having reviewed the record, we believe the evidence supported Hartman’s conviction under R.C. 2919.27(A) for recklessly violating a protection order. “A person acts recklessly when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that the person’s conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that such circumstances are likely to exist.” R.C. 2901.22(C). {¶ 14} The jury found that Hartman’s message violated the protection order, which prohibited her from initiating or having any contact with Y.H. Notably, Hartman admitted posting the message using the family’s Plex app. The testimony of Y.H. and H.H. supported 5 a finding that Hartman posted the message in Y.H.’s personal account on the app. Therefore, despite Hartman’s testimony to the contrary, the jury reasonably could have found that she acted recklessly by disregarding a substantial and unjustifiable risk that Y.H. would see the message. The jury also reasonably could have found not credible Hartman’s explanation about sending the message to herself as a means of therapeutic self-help. {¶ 15} Viewing the evidence in a light most favorable to the prosecution, the jury could have found the essential elements of the crime proven beyond a reasonable doubt. This also is not a case in which the jury clearly lost its way and created a manifest miscarriage of justice. The evidence did not weigh heavily against the conviction. Accordingly, we reject Hartman’s challenges to her conviction based on the weight and sufficiency of the evidence. The first assignment of error is overruled. {¶ 16} The second assignment of error states: Hartman received ineffective assistance of counsel. {¶ 17} Hartman alleges ineffective assistance of counsel based on her attorney’s failure to “meaningfully challenge the core narrative used by the State and sentencing court.” Her argument appears to address defense counsel’s performance both at trial and sentencing. Hartman makes generalized assertions about counsel “allegedly” having access to psychological evaluations, a letter from a psychologist, and technical information about Plex app functionality. She also contends counsel “allegedly” failed to object to certain witness testimony, challenge unspecified “technical assumptions,” or correct unspecified “prejudicial misidentification.” Finally, she criticizes defense counsel’s failure to cross- examine H.H. about the Plex app and failure to cross-examine a police officer who testified about reviewing what Y.H. had shown him. Hartman argues that defense counsel’s failure 6 to rebut the State’s narrative at trial and sentencing resulted in the conviction and a severe sentence that included a broad no-contact order. {¶ 18} We review alleged instances of ineffective assistance of counsel under the two-part analysis found in Strickland v. Washington, 466 U.S. 668 (1984), which the Ohio Supreme Court adopted in State v. Bradley, 42 Ohio St.3d 136 (1989). To prevail on an ineffective-assistance claim, a defendant must show that trial counsel rendered deficient performance and that the deficient performance prejudiced the defense. Strickland at 687; Bradley at paragraph two of the syllabus. {¶ 19} Hartman has not demonstrated ineffective assistance of counsel. Except for her complaints about cross-examination, her brief contains no citations to the record to support the allegations of ineffective assistance. She references unidentified psychological evaluations, an unspecified letter from an unnamed psychologist, and unidentified technical information about the Plex app while providing no substantive argument about these things or how she was prejudiced by them. She also complains about allegedly improper “diagnostic-style testimony” without identifying any such testimony. Likewise, she references unspecified “technical assumptions” and “prejudicial misidentification” without identifying what those assumptions and misidentifications were or how they affected her case. Although we have reviewed the trial transcript, this court “‘is not a ferret’” responsible for locating and constructing substantive arguments for a defendant. State v. Gillispie, 2021-Ohio-4157, ¶ 19 fn. 1 (2d Dist.), quoting State v. Sullivan, 2011-Ohio-2976, ¶ 42 (2d Dist.) (Froelich, J., concurring). {¶ 20} We note that Hartman specifically alleges ineffective assistance of counsel and cites the record, however, regarding her attorney’s failure to cross-examine H.H. about his locked cell phone and about Plex app access. But the cell phone issue is moot 7 considering Hartman’s acquittal on that charge. As for the Plex account, Hartman fails to identify anything that defense counsel should have asked that would have made a difference. Without more, a mere failure to cross-examine a witness is not ineffective assistance of counsel. “Trial counsel need not cross-examine every witness; indeed, doing so can backfire.” State v. Otte, 74 Ohio St. 3d 555, 565 (1996). Whether to cross-examine a witness is a strategic decision committed to counsel’s discretion. State v. Grate, 2020- Ohio-5584, ¶ 148. Hartman cannot establish ineffective assistance without explaining what information counsel failed to elicit and showing how it would have been helpful. Id. at ¶ 149. {¶ 21} We reach the same conclusion concerning defense counsel’s failure to cross- examine Kettering police officer Joshua Wiseman. He testified briefly about being dispatched to Y.H.’s residence to investigate a protection order violation. Wiseman explained that he reviewed the protection order, the message on the Plex app, and photographs of the message. He also completed a report concerning the alleged protection order violation and submitted it for review, which resulted in a charge being filed. Hartman has not identified anything that defense counsel should have asked about these matters on cross-examination that would have made a difference to her defense. As a result, we see no ineffective assistance of counsel. The second assignment of error is overruled. {¶ 22} The third assignment of error states: The trial court abused its discretion in setting conditions unrelated to the offense of which Hartman was convicted. {¶ 23} Hartman challenges the terms of her sentence with emphasis on the scope of the trial court’s no-contact order. She contends the record does not support the imposed sentence, which included a jail term, electronic monitoring, supervised probation, and a broad no-contact order. 8  {¶ 24} Appellate courts review misdemeanor sentences for an abuse of discretion.” State v. Scott, 2023-Ohio-476, ¶ 7 (2d Dist.). When sentencing for a misdemeanor, a trial court must consider the purposes and principles of misdemeanor sentencing in R.C. 2929.21, as well as the sentencing factors in R.C. 2929.22. Id. at ¶ 8-9. The purposes of misdemeanor sentencing are “to protect the public from future crime by the offender and others and to punish the offender.” R.C. 2929.21(A). “To achieve those purposes, the sentencing court shall consider the impact of the offense upon the victim and the need for changing the offender's behavior, rehabilitating the offender, and making restitution to the victim of the offense, the public, or the victim and the public.” Id. {¶ 25} There are several factors in R.C. 2929.22(B)(1) that a trial court must consider when sentencing for a misdemeanor. Scott at ¶ 9. “‘Stated generally, those factors include the nature and circumstances of the offense(s); whether the offender has a history of persistent criminal activity and is likely to commit another offense; whether there is a substantial risk that the offender will be a danger to others; whether the victim’s circumstances made the victim particularly vulnerable to the offense or made the impact of the offense more serious; and factors relating to the offender's military service, if any.’” Id., quoting State v. Johnson, 2022-Ohio-1782, ¶ 11 (2d Dist.). A trial court may consider “any other factors that are relevant to achieving the purposes and principles of sentencing set forth in [R.C. 2929.21].” R.C. 2929.22(B)(3). In addition, it must consider “any relevant oral and written statement made by the victim, the victim’s representative, the victim’s attorney, if applicable, the defendant, the defense attorney, and the prosecuting authority regarding sentencing for a misdemeanor.” R.C. 2929.22(D)(1). {¶ 26} Here the trial court explicitly considered the purposes and principles of misdemeanor sentencing as well as the appropriate statutory factors. It noted that Hartman 9 already was on probation for a similar offense and found a risk of future offenses. Based on victim-impact statements, it determined that Hartman had been engaging in a pattern of inappropriate conduct for approximately two years. Although Hartman submitted numerous letters on her behalf, the trial court observed that they appeared to have been drafted using the same “template” involving Hartman telling them what to say. In other words, the trial court concluded that the letters lacked authenticity. It additionally determined that Hartman lacked contrition or an ability to accept responsibility. {¶ 27} In our view, the trial court did not abuse its discretion in sentencing Hartman to a jail term to be followed by two years of supervised probation. With one exception, we also see no abuse of discretion in the conditions the trial court imposed. The exception concerns the no-contact order to which Hartman objected below. {¶ 28} A no-contact order issued as a probation condition must be reasonably related to rehabilitating the offender, bear some relationship to the offense of conviction, and serve the statutory ends of probation by relating to conduct that is criminal or reasonably related to criminality. State v. Jones, 49 Ohio St.3d 51, 53 (1990); State v. Brillhart, 129 Ohio App.3d 180, 183 (9th Dist. 1998); Cleveland v. Cornely, 2021-Ohio-689, ¶ 18 (8th Dist.); see also State v. Ballish, 2026-Ohio-503, ¶ 26 (stressing that “the test articulated in Jones remains relevant to those conditions devised by a sentencing court that are not expressly authorized by law”). A probation condition prohibiting contact between a defendant and a crime victim frequently satisfies Jones’ requirements. See Brillhart at 184. A no-contact order extending to non-victims is potentially more problematic. Id. at 185 (invalidating a no-contact order covering defendant’s children where he was convicted of domestic violence against his wife); Cornely at ¶ 28 (finding an abuse of discretion in a domestic violence case involving defendant’s wife where trial court’s no-contact order included his children). 10  {¶ 29} Here the trial court issued a two-year no-contact order covering six people. The first three named individuals were Y.H. and the two children residing in her home, H.H. and R.H. Although H.H. and R.H were not victims of the protection-order charge on which Hartman was convicted, she did not challenge that aspect of the order below. Rather, she specifically objected only to the inclusion of people “other than [Y.H.], [H.H.], and [R.H.].” {¶ 30} One of the three additional people was Y.H.’s adult child, J.A., who did not reside in the home and who was not involved in the case. The trial court included J.A. simply because Y.H. requested it. At Y.H.’s request, the trial court also included Hartman’s stepmother, V.F., who was the children’s grandmother. V.F. also was not involved in the case. Finally, the trial court included K.J., who was identified only as “a roommate” who was not involved in the case. {¶ 31} We conclude that the trial court’s order prohibiting Hartman from having contact with J.A., V.F., and K.J. was unrelated to the offense of conviction. Hartman was found guilty of violating a protection order that only prohibited direct or indirect contact with Y.H. At sentencing, Hartman accepted the trial court’s decision to extend its no-contact order to Y.H. and the two children living with her. We agree with Hartman, however, that there was no legitimate basis for extending the order to J.A., V.F., and K.J. simply because Y.H. requested it. The three additional named individuals are adults. They were not involved in the case, and nothing in the record indicates that they even desired to be covered by the order. We find that the trial court acted unreasonably, and thereby abused its discretion, by including J.A., V.F., and K.J. in its no-contact order. Accordingly, the third assignment of error is sustained. 11  III. Conclusion {¶ 32} The trial court’s December 19, 2025, “Post-Conviction No Contact Order” is hereby modified by removing J.A., M.F., and K.J. as persons covered by the order. With that modification, the order only prohibits Hartman from having contact with Y.H., H.H., and R.H. {¶ 33} As so modified, the judgment of the Montgomery County Common Pleas Court is affirmed. ............. HUFFMAN, J., and HANSEMAN, J., concur. 12