STATE OF OHIO, Plaintiff-Appellee, vs. JAMES FISHER, Defendant-Appellant.
APPEAL NOS. C-200461 C-200463 C-200464 C-200465
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
November 3, 2021
2021-Ohio-3919
Trial Nos. 20CRB-20651 A-B, 20CRB-20654, 20CRB-20697; Criminal Appeals From: Hamilton County Municipal Court; Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded
Raymond T. Faller, Hamilton County Public Defender, and David Hoffmann, Assistant Public Defender, for Defendant-Appellant.
BERGERON, Judge.
{¶1} After defendant-appellant James Fisher sent a flurry of threating messages to Star Higgins, his ex-girlfriend, police arrested him on her street with a firearm concealed in his vehicle. The trial court convicted Mr. Fisher of menacing by stalking, telecommunications harassment, aggravated menacing, and carrying a concealed weapon. Now Mr. Fisher appeals, raising an array of constitutional issues, challenging the weight and sufficiency of the evidence, and protesting the forfeiture of his firearm. We sustain Mr. Fisher‘s challenge to the forfeiture of his firearm, but otherwise affirm the trial court‘s judgment.
I.
{¶2} Mr. Fisher and Mrs. Higgins‘s relationship deteriorated, leading to their separation shortly after the birth of their son approximately nine years ago. Since that separation, Mr. Fisher vanished from his son‘s life. Although he contacted Mrs. Higgins every couple of years to inquire about the child, he made no effort to establish a relationship with his son.
{¶3} Desiring to chart a new course, in October 2020, he reached out to Mrs. Higgins, asking about his son and expressing a desire to become involved in his life. But when Mr. Fisher‘s communications strayed to other topics, Mrs. Higgins drew a line in the sand, forbidding him from contacting her, except about their son. In response, Mr. Fisher lashed out, chastising Mrs. Higgins and criticizing her marriage.
{¶4} Two days later, with Mrs. Higgins staying silent, Mr. Fisher erupted. From October 25 to October 27, Mr. Fisher bombarded Mrs. Higgins with a tirade of threatening text messages and phone calls. The communications deplored Mrs. Higgins related to the custody dispute over their son. In this volley of texts, among other things, Mr. Fisher
{¶5} Dismayed by this turn of events, Mrs. Higgins eventually called the police. The police filed warrants for Mr. Fisher‘s arrest and patrolled the area looking for him. Shortly after midnight, an officer arrested him on Mrs. Higgins‘s street. At the time of his arrest, Mr. Fisher admitted possessing a firearm in his car, which the officer found concealed beneath an article of clothing.
{¶6} Mr. Fisher was charged with menacing by stalking, telecommunications harassment, aggravated menacing, and carrying a concealed weapon. At a pretrial hearing, Mr. Fisher‘s trial counsel, Joshua Thompson, revealed that he had a connection with Judge Rucker, the victim of the aggravated menacing charge, because he had contributed to Judge Rucker‘s campaign for prosecuting attorney. He appropriately disclosed the connection to Mr. Fisher, and Mr. Fisher did not protest or request additional information. At a subsequent pretrial hearing several weeks later, however, Mr. Fisher had a change of heart, requesting a continuance to obtain private counsel based on concerns about counsel‘s potential conflict of interest. The trial court refused his request, noting that Mr. Fisher could have raised his concern at two intervening pretrial hearings. Without exploring the
{¶7} The case proceeded to a bench trial, with the court finding Mr. Fisher guilty on all four charges. After Mr. Fisher underwent a psychological evaluation, the trial court sentenced him to an aggregate sentence of 18 months. On appeal, Mr. Fisher argues that the convictions infringed on his right to conflict-free counsel, contravened his right to a trial by jury, were unsupported by the weight and sufficiency of the evidence, deprived him of his right to effective assistance of counsel, and violated Ohio law on the forfeiture of property.
II.
{¶8} Mr. Fisher‘s first assignment of error challenges the alleged deprivation of his Sixth Amendment right to conflict-free counsel. He maintains that (1) the trial court failed to conduct an adequate inquiry to ascertain whether a conflict of interest existed, and (2) the record demonstrates the presence of an actual conflict of interest warranting reversal of the convictions.
A.
{¶9} We agree with Mr. Fisher that the trial court initially did not conduct an adequate inquiry into a potential conflict of interest, a point underscored by an intervening Supreme Court opinion. “A trial court‘s affirmative duty to inquire [into a potential conflict of interest] arises when the trial court knows or has reason to know that a possible conflict of interest exists or when a defendant objects.” State v. Williams, Slip Opinion No. 2021-Ohio-3152, ¶ 6. A duty to inquire arose when Mr. Fisher sought to substitute Mr. Thompson for private counsel because of his contribution to the victim‘s campaign. See id. at ¶ 17 (if the record reveals “the possibility of incompatible interests,” it triggers the trial court‘s duty to inquire).
{¶11} As a result, we issued a limited remand for the trial court to conduct a hearing to determine whether an actual conflict of interest existed. See, e.g., In re J.W., 8th Dist. Geauga No. 2017-G-0139, 2018-Ohio-2020, ¶ 16 (“[W]e remand this case for fifteen (15) days from the date of this opinion for the trial court to conduct a hearing to determine whether an actual conflict of interest existed.“), citing State v. Gillard, 64 Ohio St.3d 304, 595 N.E.2d 878 (1992); Williams at ¶ 7 (“If the trial court‘s affirmative duty arose but it did not inquire, the case must be remanded to the trial court with instructions to conduct a hearing to determine whether an actual conflict of interest existed.“). Our order instructed the trial court to ascertain whether counsel‘s connection with the victim casts doubt on the
{¶12} The trial court ably and thoroughly explored these issues on remand. Scheduling a prompt hearing, it determined that Mr. Thompson made two donations to Judge Rucker‘s campaign, totaling $70. Mr. Thompson testified that he had no other involvement in Judge Rucker‘s campaign whatsoever, adding that he had only very limited contact with Judge Rucker professionally, practicing in front of him on a few occasions. The trial court concluded that no actual conflict of interest existed based on these facts.
{¶13} We hold that the trial court‘s inquiry on the limited remand sufficed to make an informed determination on whether an actual conflict of interest existed. We accordingly turn to the substance of Mr. Fisher‘s conflict of interest attack.
B.
{¶14} To prevail in establishing an actual conflict of interest, Mr. Fisher “must demonstrate that ‘an actual conflict of interest’ adversely affected his lawyer‘s performance.” State v. Barrow, 2018-Ohio-1703, 111 N.E.3d 714, ¶ 37 (1st Dist.), quoting Wood v. Georgia, 450 U.S. 261, 273, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981). That said, “[t]he trial judge has ‘wide latitude’ in determining that an actual or potential conflict exists.” State v. Keenan, 81 Ohio St.3d 133, 137, 689 N.E.2d 929 (1998), quoting United States v. Mays, 69 F.3d 116, 121 (6th Cir.1995). “Therefore, we will only reverse the trial court‘s decision if ‘the trial court‘s
{¶15} Consistent with the trial court‘s assessment of the evidence, we do not believe that a $70 donation alone establishes diverging interests between Mr. Thompson‘s representation of Mr. Fisher and his connection with Judge Rucker. See Williams, Slip Opinion No. 2021-Ohio-3152, at ¶ 18 (finding no conflict of interest when the record did not demonstrate that jointly represented defendants’ “interests diverged“). Although defense counsel‘s connections with the alleged victim could conceivably establish a conflict of interest that might adversely affect his performance, in this case counsel‘s connections with Judge Rucker were de minimis, and therefore the trial court did not abuse its discretion in rejecting the conflict claim. We accordingly overrule Mr. Fisher‘s first assignment of error.
III.
{¶16} Mr. Fisher‘s second assignment of error alleges a deprivation of his right to a jury trial under the Sixth Amendment to the United States Constitution. “The Sixth Amendment to the United States Constitution and Article 1, Section 10 of the Ohio Constitution guarantee a criminal defendant the right to a jury trial.” State v. Sweeting, 2019-Ohio-2360, 138 N.E.3d 567, ¶ 10 (1st Dist.); see State v. Lomax, 114 Ohio St.3d 350, 2007-Ohio-4277, 872 N.E.2d 279, ¶ 6. Nevertheless,
{¶18} Mr. Fisher cites no authority for the proposition that a temporary suspension of jury trials violated the Sixth Amendment, nor any cases invalidating waivers of the right to a jury trial made during such a suspension. While we realize that the suspension of jury trials placed Mr. Fisher (along with countless others) in a predicament, we see no reason to disturb an otherwise valid waiver on this record. We thus overrule Mr. Fisher‘s second assignment of error.
IV.
{¶19} Mr. Fisher‘s third assignment of error challenges the weight and sufficiency of the evidence in support of his convictions. In reviewing whether the conviction runs counter to the manifest weight of the evidence, we sit as a “thirteenth juror.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). We will reverse the trial court‘s decision to convict and grant a new trial only in ” ‘exceptional cases in which the evidence weighs heavily against the conviction.’ ” State v. Sipple, 2021-Ohio-1319, 170 N.E.3d 1273, ¶ 7 (1st Dist.), quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶20} And “[t]o determine whether a conviction is supported by sufficient evidence, ‘the relevant inquiry is whether, after viewing the evidence in a light most favorable to the
A.
{¶21} The trial court convicted Mr. Fisher of menacing by stalking under
{¶22} Mr. Fisher‘s challenge to the weight and sufficiency of the evidence supporting his menacing by stalking conviction hinges solely on whether the evidence sufficed for the trial court to attribute the message left on Mrs. Higgins‘s windshield to Mr. Fisher. Mr. Fisher insists that the court could not reasonably have determined that he placed it there. It follows, his theory goes, that the convictions for menacing by stalking and telecommunications harassment would be based on the same conduct (i.e., Mr. Fisher‘s threatening telecommunications) and, therefore, should merge.
{¶23} We need not delve into the merger issue, however, because the evidence enabled the trial court to attribute the message to Mr. Fisher. Mrs. Higgins testified that she recognized Mr. Fisher‘s writing on the message, and the language of the note echoed his text messages on the same subject matter. And Mrs. Higgins discovered the message in the midst of Mr. Fisher‘s two-day outburst. On these facts, evidence sufficed for a rational trier of fact to find Mr. Fisher left the note on the car, thus obviating the merger issue. We therefore overrule Mr. Fisher‘s challenge to his menacing by stalking conviction.
{¶24} The trial court also convicted Mr. Fisher of telecommunications harassment under
{¶25} Mr. Fisher does not dispute the weight of the evidence here. He merely claims that the evidence fails to substantiate “purpose to abuse, threaten, or harass another person.” We disagree. Mr. Fisher hurled over 70 pages of messages to Mrs. Higgins over the course of several days. Capturing the flavor of these messages, Mr. Fisher warned, “I‘ma text you everyday * * *make your life a living hell from on out because I don‘t have s*** else to [lose].” When Mrs. Higgins accused him of “trying to cause paranoia” he embraced that: “yep that‘s my whole goal.” Mrs. Higgins begged that he stop contacting her on multiple occasions, but the onslaught of messages persisted for two days. The combination of the substance and volume of these messages enabled a rational trier of fact to conclude beyond a reasonable doubt that Mr. Fisher acted with the requisite mental state, and we overrule Mr. Fisher‘s challenge to his conviction for telecommunications harassment.
C.
{¶26} Based on his threat to kill Judge Rucker, the trial court convicted Mr. Fisher of aggravated menacing under
{¶27} Mr. Fisher takes issue with this by disputing whether a threat to a third party that is not communicated directly to that person can support a conviction for aggravated
{¶28} The Fifth, Ninth, and Eleventh Districts have all followed our general approach in Roberts. State v. McWilliams, 5th Dist. Stark No. 2011-CA-00051, 2012-Ohio-663, ¶ 27 (“[T]o sustain an aggravated menacing conviction, a threat to cause the harm need not be made directly to the intended victim, as we found in [a previous case], but may be sufficient if made to a third-party to whom the defendant knew or reasonably should have know[n] would convey the threat to the intended victim.“); State v. Knoble, 9th Dist. Lorain No. 08CA009359, 2008-Ohio-5004, ¶ 13 (“We conclude that
{¶29} Based on our own precedent, and the cases from our sister districts, we reject Mr. Fisher‘s theory that the defendant must directly communicate the threat to the intended victim to sustain a conviction for aggravated menacing. To the contrary, Mr. Fisher must have made his statement “to a third-party to whom [Mr. Fisher] knew or reasonably should have know[n] would convey the threat to the intended victim.” See McWilliams at ¶ 27.
{¶30} Here, the evidence established that Mr. Fisher should have known that the threat would be communicated to Judge Rucker. The text messages reveal that Mr. Fisher knew that Mrs. Higgins‘s mother used to work for Judge Rucker and that he believed that Judge Rucker had assisted her on the custody matter concerning their son. Viewing these facts in the light most favorable to the prosecution, a rational trier of fact could convict Mr. Fisher of aggravated menacing despite the fact that he did not communicate the threat directly to the victim. He expected that Mrs. Higgins would convey the threat, and in fact she did. We therefore overrule Mr. Fisher‘s challenge to his conviction for aggravated menacing.
D.
{¶31} The trial court convicted Mr. Fisher of carrying a concealed weapon under
{¶32} Mr. Fisher merely challenges the weight of the evidence here by raising credibility concerns related to the arresting officer‘s testimony. The arresting officer testified that he stopped Mr. Fisher after running his license plate, which revealed that the vehicle was registered to a female. On appeal, Mr. Fisher acknowledges that the vehicle was
V.
{¶33} Mr. Fisher‘s fourth assignment of error claims a deprivation of his right to effective assistance of counsel. ” ‘When a convicted defendant complains of the ineffectiveness of counsel‘s assistance, the defendant must show that counsel‘s representation fell below an objective standard of reasonableness.’ ” State v. Sanders, 94 Ohio St.3d 150, 151, 761 N.E.2d 18 (2002), quoting Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “Furthermore, ‘the defendant must show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” Id., quoting Strickland at 694. Ohio courts must give ” ‘a heavy measure of deference to counsel‘s judgments’ ” and ” ‘indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance.’ ” Id., quoting Strickland at 689, 691.
{¶34} Mr. Fisher complains about the denial of effective assistance of counsel because his lawyer did not argue that he had a valid concealed handgun license (“CHL“), a defense to the carrying a concealed weapon offense. Although Mr. Fisher testified that his
{¶35} Although Mr. Fisher may well be correct on this point, we see nothing in the record that validates his conclusion. Without proof of when his CHL expired, the record does not establish a reasonable probability that, if counsel had raised this theory, the result of the proceeding would have differed. Therefore, Mr. Fisher falls short on the prejudice prong of Strickland, and we accordingly overrule Mr. Fisher‘s fourth assignment of error based on the state of this record.
VI.
{¶36} Mr. Fisher‘s fifth assignment of error asserts that the trial court erred by forfeiting his handgun without including a forfeiture specification in the complaint or the bill of particulars, as
* * *
{¶37} For all of the foregoing reasons, we overrule Mr. Fisher‘s first, second, third, and fourth assignments of error. But we sustain Mr. Fisher‘s fifth assignment of error, and remand this cause for further proceedings consistent with this opinion.
ZAYAS, P. J., and WINKLER, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion