STATE OF OHIO v. FRED A. BENNETT
C.A. CASE NO. 24576
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
January 20, 2012
[Cite as State v. Bennett, 2012-Ohio-194.]
T.C. NO. 10CRB12418; (Criminal appeal from Municipal Court)
Rendered on the 20th day of January, 2012.
EBONY N. WREH, Atty. Rеg. No. 0080629, Assistant City Prosecutor, 335 W. Third Street, Room 372, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
MICHAEL HALLOCK JR., Atty. Reg. No. 0084630, P. O. Box 292017, Dayton, Ohio 45429
Attorney for Defendant-Appellant
FROELICH, J.
{1} Defendant-appellant Fred Bennett, Jr., appeals from his convictions for criminal damaging and aggravated menacing.
I
{3} A couple of hours later, Artis heard a crashing noise outside. When Artis looked out the window, he saw Bennett‘s van parked in front of the house. Bennett was standing in Artis‘s driveway, swinging a yellow club toward Artis‘s car. Artis heard two more crashes and went outside. Artis saw Bennett back away from the car, get into his own van, and drive away. Threе of Artis‘s car windows were broken. When the couple had arrived at home earlier in the evening, they had moved two car seats from Chrystal‘s van to Artis‘s car, and thе windows had been intact at that time. A short time later, Chrystal returned home with the couple‘s cell phone, and they called the police.
{4} The following evening, Artis heard a vehicle outside. He looked out the window and saw Bennett‘s van stopped in front of his house. After a few seconds, Bennett drove slowly to the cоrner and turned. Artis twice told his wife to call the police, but she did not do so at first. Bennett drove very slowly around the block and entered the alley behind the Gentrys’ homе, where he stopped again. Bennett drove away, but a few minutes later Artis and Chrystal saw him walking toward the front of their house. Bennett approached Chrystal‘s vаn, which was parked next to Artis‘s car in their driveway. Bennett
{5} The following day, Artis and Chrystal obtained a protection order against Bennett. Bennett was charged with criminal damaging and two counts of aggravated menacing. Following a bench trial, Bennett was found guilty of all charges and sentenced accordingly. Bennett appeals.
II
{6} Bennett‘s First Assignment of Error states:
{7} “THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY CONVICTING THE DEFENDANT BECAUSE THE STATE‘S EVIDENCE WAS INSUFFICIENT TO SUSTAIN A CONVICTION FOR CRIMINAL DAMAGING.”
{8} Bennett‘s Second Assignment of Error states:
{9} “THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY CONVICTING THE DEFENDANT BECAUSE THE STATE‘S EVIDENCE WAS INSUFFICIENT TO SUSTAIN A CONVICTION FOR AGGRAVATED MENACING.”
{10} Bennett argues that his convictions were not supported by sufficient evidence. A sufficiency of the evidence argument chаllenges whether the State has presented adequate evidence on each element of the offense to allow the case to go to thе jury or to sustain the verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52. The proper test to apply to such an inquiry is the one set forth in paragraph two of the
{11} We first consider Bennett‘s criminal damaging conviction, in violation of
{12} Although Artis did not see Bennett making contact with the car windows, his testimony was sufficient to support a conviction for criminal damaging. When Artis heard a crash outside of his home, he looked out of his window and saw Bennett standing in his driveway, swinging a yellow club toward his car. Artis heard two more crashes, and he went outside in time to see Bennett back away from Artis‘s car, get into his own van, and
{13} We next turn to Bennett‘s convictions for two counts of aggravated menacing, in violation of
{14} Bennett claims that the State failed to prove that Artis and Chrystal had a reasonable fear of serious physical harm because he never said anything to them on December 28th. The statute, however, does not require that the threats be either direct or explicit. See, e.g., State v. Akbar (Nov. 2, 2001), Montgomery App. No. 18766, citing Dayton v. Davis (1999), 136 Ohio App.3d 26. Moreover, the trial court was not required to consider only the еvidence of the events of December 28th when the court also had before it evidence of Bennett‘s words and actions on the previous night.
{15} The State‘s еvidence shows that on the evening of December 27th, Bennett had an altercation with Artis and Chrystal. During that altercation, the parties pushed each other аround, and Bennett spit on Chrystal. Bennett reminded the couple that he knew where they lived, and he made unspecified threats to “get” them. Later that night, Bennett went to the couple‘s home and broke three of their car windows. The next night, Bennett returned to the couple‘s home and was seen walking toward their home and approaching their van, all the while repeatedly smacking a bar against his hand.
{17} Chrystal testified that in light of Bennett‘s behaviоr on the previous evening and her knowledge of his history of violence, she felt threatened by his presence at her home on the 28th. Although Chrystal did not immediately call the police when she saw Bennett driving past the house, she did call when he began to approach the home on foot. Chrystal explained, “I beliеve that he would come and do some criminal damaging to my property and if he could get close to me he would do the same to me.” Viewing the evidence in the State‘s favor, we conclude that the State offered sufficient evidence to support Bennett‘s convictions for aggravated menacing.
{18} Bennett insists that Artis and Chrystal could not have been in fear for their safety, or they would have called the police sooner, and they would not have opened their front door. However, the trial court, as the trier of fact, was in the best position to decide whether Artis and Chrystal‘s claims that they were in fear for their safety were unbelievable, in light of their decisions to briefly delay calling the police and to open their front door after they did call the police.
{19} Both of Bennett‘s assignments of error are overruled.
III
{20} Having overruled both of Bennett‘s assignments of error, we affirm the
GRADY, P.J. and HALL, J., concur.
Copies mailed to:
Ebony N. Wreh
Michael Hallock Jr.
Hon. John S. Pickrel