State v. Wimley
2011 Ohio 5639
Ohio Ct. App.2011Background
- Wimley had an approximate three-year relationship with Tammy Fogg; a restraining order was issued against him.
- In June–August 2009, after alleged incident involving Fogg’s daughter, Wimley sent letters to Fogg’s mother and left messages for Fogg and her mother; Fogg perceived threats.
- Wimley was indicted and convicted on: (1) intimidation of a crime witness (R.C. 2921.04(B)), (2) menacing by stalking, and (3) violating a protection order; sentences run concurrently.
- Wimley appealed his intimidation conviction, challenging sufficiency of the evidence.
- Court applied de novo review to sufficiency, with focus on whether a ‘criminal action or proceeding’ existed for R.C. 2921.04(B).
- Court reversed the intimidation conviction for lack of a proven underlying criminal action or proceeding and remanded for further proceedings; second assignment deemed moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether evidence supports intimidation of a crime witness under R.C. 2921.04(B). | Wimley contends no underlying criminal action or proceeding existed. | State contends a criminal action or proceeding was underway based on investigation and report. | Insufficient evidence; no underlying proceeding established; conviction reversed. |
Key Cases Cited
- State v. Thompkins, 78 Ohio St.3d 380 (Ohio 1997) (sufficiency review is de novo; rational trier of fact could convict beyond reasonable doubt)
- State v. Jenks, 61 Ohio St.3d 259 (Ohio 1991) (standard for sufficiency: view evidence in light most favorable to the prosecution)
- State v. Malone, 121 Ohio St.3d 244 (Ohio 2009) (witness intimidation under 2921.04(B) requires a formal proceeding; pre-proceedings threats insufficient)
- State v. Rivera-Rodriguez, 2008-Ohio-1461 (9th Dist.) (discusses application of witness intimidation and related statutes)