STATE OF OHIO, PLAINTIFF-APPELLEE, v. TAWNY N. HANSEN, DEFENDANT-APPELLANT.
CASE NO. 13-12-42
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY
April 29, 2013
[Cite as State v. Hansen, 2013-Ohio-1735.]
Appeal from Seneca County Common Pleas Court Trial Court No. 12-CR-0084 Judgment Affirmed
Kent D. Nord for Appellant
Derek W. DeVine and Brian O. Boos for Appellee
{¶1} Defendant-appellant, Tawny N. Hansen, appeals the Seneca County Court of Common Pleas’ judgment entry of conviction and sentence. For the reasons that follow, we affirm.
{¶2} The Tiffin Municipal Court sentenced Hansen‘s boyfriend, Casey Gowitzka, to ten days in jail following his plea of no contest to possession of drug paraphernalia. (See State‘s Ex. 1, Doc. No. 1).
{¶3} On April 10, 2012, around 10:30 a.m., Hansen called the court, advising a deputy clerk that if her boyfriend was in jail, she could not attend secondary school. (July 17-18, 2012 Tr. at 8, 121); (State‘s Ex. 1). Hansen expressed her resentment with the court and threatened to blow up the courthouse. (Id. at 8, 121-124). The court then reported the bomb threat to the Tiffin Police Department. (Id. at 122-123, 137-138, 142). Later that same day, Hansen called the Tiffin Police Department and complained about the officer who arrested her boyfriend. (Id. at 8); (State‘s Ex. 1). After speaking with Hansen, the dispatch officer realized she was the same person who had threatened to blow up the courthouse earlier that day. (State‘s Ex. 1); (July 17-18, 2012 Tr. at 179). When the dispatch officer advised Hansen that she could not make such threats, Hansen stated “well if it comes down to it, I don‘t care because I am already losing five years of school because I can‘t get there today.” (State‘s Ex. 1). When the
{¶4} Hansen was arrested and served with a copy of a complaint charging her with one count of making a terroristic threat in violation of
{¶5} On April 18, 2012, the State filed a motion to amend the complaint to also include subsection (A)(2) under
{¶6} On April 20, 2012, Hansen waived her right to a preliminary hearing and agreed to have this matter bound over to the Seneca County Common Pleas Court. Hansen‘s bond was continued. (Id.).
{¶8} On May 23, 2012, the Seneca County Grand Jury indicted Hansen on one count of making a terroristic threat in violation of
{¶9} On May 24, 2012, the trial court set bond at $100,000.00 with no 10% allowance. (Doc. No. 7).
{¶10} On June 6, 2012, the State filed a bill of particulars and its discovery response. (Doc. Nos. 8-9). On that same date, Hansen entered a plea of not guilty at arraignment, and the trial court modified her bond to $50,000.00, with no 10% allowance. (Doc. No. 11). On June 26, 2012, the State filed an amended bill of particulars. (Doc. No. 14).
{¶11} On July 11, 2012, Hansen filed a motion in limine to exclude all evidence of statements she made pertaining to the bomb threats other than those she allegedly made to the Tiffin Municipal Court deputy clerk. (Doc. No. 26).
{¶12} On July 12, 2012, the Tiffin Municipal Court Judge Mark Repp filed a motion to quash a subpoena duces tecum Hansen served on him, which requested a copy of the court‘s security plan. (Doc. No. 27).
{¶14} On July 16, 2012, Hansen filed a motion for discharge, alleging that the State violated her speedy trial rights under
{¶15} On July 16-17, 2012, a jury trial was held. Prior to the jury verdict, Hansen made a motion for mistrial, which was denied. (July 16-17, 2012 Tr. at 232-242). Thereafter, the jury found Hansen guilty. (Doc. No. 41). On July 17, 2012, Hansen filed a motion for acquittal pursuant to
{¶16} On September 11, 2012, the trial court sentenced Hansen to 18 months imprisonment. The trial court filed its judgment entry sentence on September 19, 2012. (Doc. No. 50).
{¶17} On October 11, 2012, Hansen filed her notice of appeal. (Doc. No. 55). Hansen now appeals raising eight assignments of error for our review. We elect to address Hansen‘s assignments of error out of the order presented in her brief and to combine her assignments of error where appropriate.
The trial court erred when it denied Appellant‘s Motion for Discharge pursuant to
{¶18} In her fourth assignment of error, Hansen argues that the trial court erred by denying her motion for discharge since the State failed to prosecute her within the 270 days allowed by
{¶19}
{¶20} A speedy trial claim involves a mixed question of law and fact for purposes of appellate review. State v. Masters, 172 Ohio App.3d 666, 2007-Ohio-4229, ¶ 11 (3d Dist.), citing State v. High, 143 Ohio App.3d 232, 242 (7th Dist.2001). Accordingly, a reviewing court must give due deference to the trial court‘s findings of fact if they are supported by competent, credible evidence but will independently review whether the trial court correctly applied the law to the facts of the case. Masters at ¶ 11.
{¶21} The record indicates that Hansen was arrested on April 10, 2012 and held in jail until the trial commenced on July 16, 2012, which is 97 days—seven days beyond the 90 days permitted under
{¶22} Hansen argues that the motion she filed on May 16, 2012 for a bill of particulars and discovery should not have tolled time since it was prematurely filed under
{¶23} Hansen‘s fourth assignment of error is, therefore, overruled.
Assignment of Error No. I
The trial court erred when it denied Appellant‘s Motion in Limine to prohibit the instruction [sic] of additional phone calls made by Appellant to the Court.
Assignment of Error No. II
The trial court erred when it denied Appellant‘s Motion in Limine to prohibit the introduction of the recording of Appellant at the time of her arrest.
{¶24} In her first and second assignments of error, Hansen argues that the trial court erred by denying her motions in limine to exclude from evidence a taped recording of her phone call to Lt. Michelle Craig and a taped recording of statements she made during her arrest. Hansen argues that the statements were
{¶25} A motion in limine is a request for the court to limit or exclude certain evidence which the movant believes is improper, which is made in advance of the actual presentation of the evidence and usually prior to trial. State v. Black, 172 Ohio App.3d 716, 2007-Ohio-3133 ¶ 11 (3d Dist.), citing State v. Winston, 71 Ohio App.3d 154, 158 (2d Dist.). “The motion asks the court to exclude the evidence unless and until the court is first shown that the material is relevant and proper.” Black at ¶ 11. Since a trial court‘s decision on a motion in limine is a ruling to exclude or admit evidence, we review the trial court‘s decision for an abuse of discretion that amounted to prejudicial error. Id., citing State v. Yohey, 3d Dist. No. 9-95-46 (Mar. 18, 1996), citing State v. Graham, 58 Ohio St.2d 350 (1979), and State v. Lundy, 41 Ohio App.3d 163 (1st Dist.1987). An abuse of discretion constitutes more than an error of judgment; rather, it implies that the trial court acted unreasonably, arbitrarily, or unconscionably. State v. Adams, 62 Ohio St.2d 151, 157 (1980).
{¶26} The trial court ruled on the motions in limine just prior to the start of the trial. Defense counsel represented that the motions in limine sought to exclude
{¶27} The State, on the other hand, argued that the subsequent statements were admissible to show identity and motive or purpose. (Id. at 9-10). The State argued that the subsequent statements were really just a continuation of the initial threat, and Hansen stated therein “[i]f something doesn‘t get done, I need my boyfriend out of jail today.” (Id. at 10). The State also pointed out that it was not required to stipulate to identity, and if even with the stipulation, it still had the burden of proving identity. (Id.).
{¶29} Hansen‘s first and second assignments of error are, therefore, overruled.
Assignment of Error No. III
The trial court erred when it granted the Motion to Quash the Appellant‘s supoena [sic] duces tecum whereby she requested the security plan for the Tiffin Municipal Court adopted under Rule of Superintendence 9(A).
{¶31} A subpoena may be used to command a person to produce in court books, papers, documents, and other objects.
{¶32} Upon review we cannot conclude that the trial court abused its discretion by granting the motion to quash. To begin with, the security plan is a sensitive document whose contents should be safeguarded. Hansen argues that the court security plan was relevant because court personnel‘s actions with respect to the plan show how serious they thought Hansen‘s threats were. The evidence presented at trial, however, demonstrated that the security plan was in draft form and had not been formally adopted by the court. (July 16-17, 2012 Tr. at 157-158). In fact, when defense counsel asked the deputy clerk who received the threatening phone call about the court security plan, she indicated that she was not aware of such a plan. (Id. at 134). Beyond that, the trial court permitted defense counsel to review the security plan in chambers and to question court personnel
{¶33} Hansen‘s third assignment of error is, therefore, overruled.
Assignment of Error No. VIII
The trial court erred when it denied Appellant‘s Motion for Acquittal pursuant to Criminal Rule 29.
Assignment of Error No. VI
The conviction in the trial court should be reversed because it is against the manifest weight of the evidence and because evidence supporting it was insufficient as a matter of law to prove the conviction beyond a reasonable doubt.
{¶34} In her eighth assignment of error, Hansen argues that the trial court erred in denying her
{¶36} When reviewing the sufficiency of the evidence, “[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259 (1981), paragraph two of the syllabus.
{¶37} On the other hand, in determining whether a conviction is against the manifest weight of the evidence, a reviewing court must examine the entire record, “[weigh] the evidence and all reasonable inferences, consider the credibility of 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. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing court must still allow the trier of fact appropriate
{¶38} Laura Bouillon, a deputy clerk at the Tiffin Municipal Court, testified that her primary responsibilities include answering the phones, waiting on the public, and docketing court proceedings. (July 16-17, 2012 Tr. at 119). Bouillon testified that, around 10:30 a.m. on April 10, 2012, she received a threatening phone call at the court. (Id. at 119-120, 123). Bouillon testified that the individual on the phone first asked her whether Casey Gowitzka had to go to jail, and she informed the caller that he was sentenced to 10 days in jail. (Id. at 120-121). According to Bouillon, the caller became agitated and stated, “No, that‘s not okay. Do you know how much school costs? No.” (Id.). Bouillon asked the caller if she had any more questions regarding the case, and the caller said “the officer was stupid.” (Id.). At that point, Bouillon again asked the caller if she had any other questions about the case, and the caller stated, “No. I‘m just gonna come and blow the courthouse up” and hung up the phone. (Id. at 121-122). Bouillon testified that, after the caller made the threat, she informed her supervisor because she thought it was a serious allegation. (Id. at 122-123). Bouillon testified that later that day someone from the Tiffin Police Department questioned her about the phone call. (Id. at 123).
{¶40} Judge Mark E. Repp of the Tiffin Municipal Court testified that, on the morning of April 10, 2012, he was presiding over arraignments. (Id. at 140-141). Judge Repp testified that during one of the arraignments he imposed a jail sentence upon Gowitzka, and that later that morning the court clerk, Comer, informed him that they received a phone call threatening to blow up the courthouse. (Id. at 141-142). Judge Repp testified that it was the first bomb threat the court had received during his ten years of service on the bench. (Id. at 142). He testified that he did not feel qualified to determine whether the threat was imminent or not, so he directed Comer to inform the Tiffin Police Department. (Id.). Judge Repp further testified that Lt. Craig and a couple uniformed officers searched the courthouse and ascertained that there was no apparent threat, so he continued court proceedings. (Id. at 143).
{¶42} Tiffin Police Officer Bryan Bryant testified that he had training and experience with identifying explosive devices from his time in the military and in the police department. (Id. at 162-163). Officer Bryant testified that he received a dispatch to respond to the police department to investigate a bomb threat against
{¶44} Tiffin Police Department Lieutenant Michelle Craig testified that, on April 10, 2012, she was the Acting Chief of Police and working the day shift. (Id. at 176-178). Lt. Craig testified that the dispatcher informed her that they were sending Officer Bryant to the Tiffin Municipal Court because a female subject called the court, was upset about her boyfriend being incarcerated, and made a bomb threat. (Id. at 178-179). She testified that shortly thereafter the dispatcher
{¶45} Lt. Craig testified that her secondary responsibility after conducting the search of the court was to ensure Hansen‘s safety since she made a threat of killing herself during her conversation with the dispatcher. (Id. at 184). To that end, she determined from the traffic stop report that Hansen lived in Bellevue and contacted the Bellevue Police Department to see if they would check on Hansen, which they agreed to do. (Id. at 184). Lt. Craig also informed the Bellevue Police
{¶47} Thereafter, the State and defense both rested. (Id. at 244). The defense made a motion for acquittal under
{¶48} Upon review of the foregoing testimony and evidence admitted at trial, we conclude that Hansen‘s conviction was supported by sufficient evidence and not against the manifest weight of the evidence.
{¶49} Hansen was convicted on one count of making a terroristic threat in violation of
(A) No person shall threaten to commit or threaten to cause to be committed a specified offense when both of the following apply:
(1) The person makes the threat with purpose to * * * [a]ffect the conduct of any government by the threat or by the specified offense.
* * *
(2) As a result of the threat, the person causes a reasonable expectation or fear of the imminent commission of the specified offense.
{¶51} Finally, Hansen argues that her conviction is against the manifest weight of the evidence because there was not a reasonable expectation or fear that she would carry out her threat. We disagree. During Hansen‘s phone calls to the
{¶52} Hansen‘s eighth and sixth assignments of error are, therefore, overruled.
Assignment of Error No. V
Tawney N. Hansen was deprived of her rights to effective assistance of counsel by her counsel, in contravention of the Sixth and Fourteenth Amendments to the United States Constitution, and Article One, Section Ten of the Ohio Constitution, which severely prejudiced the rights of Appellant and did not further the administration of justice.
{¶53} In her fifth assignment of error, Hansen argues that trial counsel was ineffective during voir dire when he failed to inquire if any potential jurors were related to law enforcement. Hansen argues that a juror, Ms. Vallery, identified herself as being married to “Shawn,” who is Detective Shawn Vallery of the Tiffin Police Department. Detective Vallery, according to Hansen, works directly with
{¶54} A defendant asserting a claim of ineffective assistance of counsel must establish: (1) the counsel‘s performance was deficient or unreasonable under the circumstances; and (2) the deficient performance prejudiced the defendant. State v. Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984).
{¶55} Hansen has failed to demonstrate ineffective assistance of counsel. Ms. Vallery introduced herself during voir dire as follows: “I‘m Lori. I work at Tiffin Mercy and I‘m a Tiffin resident. I have three children and I am married to Shawn.” (July 16-17, 2012 Tr. at 55). There is no indication in the record that Shawn Vallery is a Tiffin Police Detective, or that Lori is married to the same “Shawn” who is allegedly a detective. Besides that, how an attorney conducts voir dire is a matter of trial strategy, which a reviewing court should not “second-guess.” State v. Reynolds, 3d Dist. No. 1-02-70, 2003-Ohio-2067, ¶ 20-21, citations omitted (trial counsel was not ineffective for failing to exercise peremptory challenges on two jurors who were related to law enforcement officers). All the prospective jurors were asked whether they had a personal interest in the outcome of the case, and no one responded affirmatively. (July 16-17, 2012 Tr. at 37). All of the prospective jurors were also asked if they could not
{¶56} Hansen‘s fifth assignment of error is, therefore, overruled.
Assignment of Error No. VII
The trial court erred when it denied Appellant‘s Motion for Mistrial.
{¶57} In her seventh assignment of error, Hansen argues that the trial court erred by denying her motion for mistrial. Hansen argues she was entitled to a mistrial because the trial court allowed the State to play recordings of her phone call with Lt. Craig and her arrest to the jury. Hansen argues that these recordings were irrelevant since they occurred after the statements giving rise to the crime and prejudicial since they made her look mentally unstable.
{¶58} “Mistrials need be declared only when the ends of justice so require and a fair trial is no longer possible.” State v. Franklin, 62 Ohio St.3d 118, 127 (1991). Whether to grant a mistrial is within the sound discretion of the trial court. State v. Brown, 100 Ohio St.3d 51, 2003-Ohio-5059, ¶ 42, citing State v. Glover, 35 Ohio St.3d 18, 19 (1988).
{¶59} At the end of the trial, Hansen made a motion for a mistrial after the trial court allowed the recordings of her phone conversation with Lt. Craig and her arrest to be played for the jury. (July 16-17, 2012 Tr. at 232). Counsel argued
{¶60} Upon review, we conclude that the trial court did not abuse its discretion by denying the motion for a mistrial. We have already found that State‘s exhibits one and two, recordings of Hansen‘s phone calls to the Tiffin Police Department, were relevant to show identity, purpose or motive, and an essential element of the offense—that Hansen “cause[d] a reasonable expectation or fear of the imminent commission of the specified offense.”
{¶61} State‘s exhibit three was a recording of statements made by Hansen during her arrest, including admissions to making the threats to the municipal court. While many of Hansen‘s statements and her behavior were potentially prejudicial, the trial court specifically instructed the jury that State‘s exhibit three “may only be used for purposes of determining the identity of the individual that
{¶62} Hansen‘s seventh assignment of error is, therefore, overruled.
{¶63} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ROGERS and SHAW, J.J., concur.
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