STATE OF OHIO, Plaintiff-Appellee, vs. TIANA BINGHAM, Defendant-Appellant.
APPEAL NO. C-210434
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
June 17, 2022
2022-Ohio-2074
TRIAL NO. 21CRB-3436; Criminal Appeal From: Hamilton County Municipal Court; Judgment Appealed From Is: Affirmed
Andrew W. Garth, City Solicitor, William T. Horsley, Chief Prosecuting Attorney, and Jennifer Bishop, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and David Hoffman, Assistant Public Defender, for Defendant-Appellant.
{¶1} Defendant-appellant Tiana Bingham appeals the trial court‘s judgment convicting her of menacing in violation of
Relevant Facts and Procedural History
{¶2} Bingham was charged with aggravated menacing after Joelle Armstead reported to Cincinnati police that Bingham had threatened her.
{¶3} Bingham had been scheduled for trial in May and June 2021, but the trials did not go forward due to a police officer being unavailable one day and the prosecuting witness being unavailable on the other day.
{¶4} At a July 2021 trial setting, the court stated that it had an appointment at 2:00 p.m. that day. The court offered to start the trial and continue it in progress, but the prosecuting witness had to leave. Bingham orally moved for dismissal, pointing to the unavailability of the prosecuting witness and a police officer at the two previous settings and the court‘s unavailability that day. Bingham did not assert her speedy-trial rights. The court denied her motion, stated that the continuance was at the court‘s request, and that it would toll the speedy-trial time under
{¶5} At the August 2021 trial, Armstead was the only witness. She testified that, while standing on the patio at a bar, she overheard Bingham state that “[Armstead] going to get her ass beat and drug through the bar” and that Bingham would shoot her. Bingham was there with Armstead‘s ex-boyfriend, Donovan Squire. When Armstead asked Bingham about what she had overheard, Squire told Armstead to leave. Bingham followed her. Armstead testified that Bingham did not show her a gun, but she knew that Bingham carried one.
{¶7} Elmwood police called Armstead the following morning and advised her that she needed to file the report with Cincinnati police. Armstead called 911. Cincinnati police responded to Armstead‘s home that day. Armstead testified that she was scared on the day after the altercation because, “When you say you‘re going to shoot me, and my son got murdered, yeah I was scared because I don‘t know what can happen.”
{¶8} After the state rested, Bingham moved for a
{¶9} The trial court found that Bingham did not brandish a gun and that there was no threat of immediate harm. It convicted Bingham of the lesser-included offense of menacing under
Law and Analysis
A. Bingham waived argument involving speedy-trial rights
{¶10} In Bingham‘s first assignment of error, she argues that her speedy-trial rights were violated. She asserts that she moved for dismissal on day 95 of the speedy-trial clock.
{¶12} Bingham moved to dismiss twice. She first moved for dismissal at the July 2021 trial date, but her argument involved the unavailability of witnesses and the court. While the court stated that it was tolling time under
{¶13} Bingham did not raise the expiration of her speedy-trial time below. Consequently, her first assignment of error is overruled.
B. Conviction of a Lesser-Included Charge
{¶14} In her second assignment of error, Bingham contends that the trial court‘s conviction for menacing was contrary to the manifest weight of the evidence.
{¶15} In reviewing a weight-of-the-evidence claim, this court must review “the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses 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. Bailey, 1st Dist. Hamilton No. C-140129, 2015-Ohio-2997, ¶ 59, quoting State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). This court will not substitute its judgment for that of the trier of fact on the issue of witness credibility unless it is patently apparent that the trier of fact lost its way in arriving at its verdict. Bailey at ¶ 63.
{¶17} Generally, a trial court may enter a judgment of conviction on a lesser-included offense, an offense of an inferior degree, or an attempt to commit the greater charged offense.
{¶18} Once the trial court confirmed that Bingham had not brandished a gun, it correctly concluded that Bingham met the elements of menacing as the record reflected that she “knowingly caused [Armstead] to believe that [Bingham] would cause physical harm to [Armstead].” Armstead overheard Bingham make a threat using Armstead‘s name. Bingham verbally accosted Armstead when she addressed Bingham directly. Armstead attempted to remove herself from the situation, but Bingham continued to pursue her and make threats.
{¶19} The trial court was in the best position to determine whether Armstead‘s testimony was credible. The testimony at trial supports Bingham‘s conviction. This is
Conclusion
{¶20} Bingham did not raise the speedy-trial issue below, thus waiving this argument. Her conviction of the lesser included offense of menacing was proper, within the court‘s discretion, and not against the manifest weight of the evidence. We therefore affirm the trial court‘s judgment.
Judgment affirmed.
ZAYAS, P.J., and BERGERON, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.