State v. Pate
2013 Ohio 3740
Ohio Ct. App.2013Background
- On December 5, 2012 Damon Pate, while living with his ex-wife Lavette Banks, threatened to shoot her and her nephews, allegedly gesturing toward his waistband where he kept a gun. Banks called 911 during the incident.
- Officers responded; Pate was arrested after Banks reported the threat and later said he passed the gun to a friend over a balcony.
- A temporary protection order (TPO) was issued the day of arrest prohibiting Pate from contacting Banks; counsel stipulated he received notice.
- While detained, Pate repeatedly called Banks from the Hamilton County Justice Center, violating the TPO.
- Pate was convicted in municipal court of three misdemeanors: threat of domestic violence, aggravated menacing, and violating a protection order. The court sentenced him to 180 days on each count, with the two violence-related sentences concurrent and consecutive to the PO violation sentence, for a 360-day aggregate term.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for convictions | State: testimony and officer observations proved elements beyond a reasonable doubt | Pate: evidence was insufficient to support convictions | Affirmed — evidence was sufficient (Jenks standard) |
| Manifest weight of the evidence | State: credibility of victim and officers supports convictions | Pate: convictions were against the manifest weight of the evidence | Affirmed — trial court did not clearly lose its way (Thompkins standard) |
| Misdemeanor sentencing abuse of discretion | State: sentence supported by prior DV conviction, PO violation, and gun allegation | Pate: aggregate 360-day jail term was excessive | Affirmed — court did not abuse discretion in imposing sentence |
| Allied-offenses (threat of domestic violence vs. aggravated menacing) | State: initially convicted on both counts based on same conduct | Pate: convictions are allied offenses and should merge under R.C. 2941.25 | Sustained — convictions are allied; vacate sentences for both and remand for election and resentencing (Whitfield/Johnson principles) |
Key Cases Cited
- State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (Ohio 1991) (standard for sufficiency of the evidence review)
- State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (Ohio 1997) (standard for manifest-weight review)
- State v. Johnson, 128 Ohio St.3d 153, 942 N.E.2d 1061 (Ohio 2010) (same-conduct analysis for allied offenses of similar import)
- State v. Whitfield, 124 Ohio St.3d 319, 922 N.E.2d 182 (Ohio 2010) (remedy and procedure when allied-offense merger required)