STATE OF OHIO, Plaintiff-Appellee, vs. ERIC T. KENDALL, Defendant-Appellant.
Case No. 10CA26
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY
Released: May 19, 2011
[Cite as State v. Kendall , 2011-Ohio-2475.]
McFarland, J.
DECISION AND JUDGMENT ENTRY
Chandra L. Ontko, Cambridge, Ohio, for Appellant.
Roland W. Riggs, III., Marietta City Law Director, and Mark Sleeper, Marietta City Assistant Law Director, Marietta, Ohio, for Appellee.
McFarland, J.:
{¶1} Defendant-Appellant, Eric T. Kendall, appeals the decision of the Marietta Municipal Court that found him guilty, after a jury convicted him on two counts of menacing, fourth degree misdemeanors, in violation of
FACTS
{¶2} Appellant, Eric Kendall, and Miranda Duty are divorced and have three children, M.K, C.K., and E.K., who were ages 8, 11, and 12, respectively, at the time of the events that are the subject of this appeal. On or about March 6, 2010, Appellant‘s children were visiting him for the weekend. Over the course of the weekend, Appellant made several disturbing statements either to or in the presence of his children. After coming home from a bar on Saturday during the weekend visitation, Appellant‘s clothes had blood on them, which he stated was a result of beating someone up in a bar fight. According to E.K., Appellant then stated that the children‘s mother, as well the mother‘s boyfriend, were going to get the same thing, but worse. Also, according to E.K., Appellant later stated he was going to do the same thing to the children, and also stated that he was going blow the children‘s mother‘s brains out. According to M.K., Appellant threatened to kill his kids and their grandmother too.1 According to both E.K and M.K. they were afraid because they had previously witnessed their father beat their mother.
{¶4} Thereafter, an investigation ensued and on July 9, 2010, two criminal complaints were filed charging Appellant with menacing. The first complaint alleged that Appellant knowingly caused M.K. to believe that he would cause physical harm to her or her property. The second complaint alleged that Appellant knowingly caused M.K. to believe that he would cause physical harm to her or her property, or to the person or property of Miranda Duty, a member of M.K.‘s immediate family. Appellant pled not guilty to the charges and the matter proceeded to a jury trial.
{¶5} Prior to the commencement of the jury trial on August 12, 2010, the parties made arguments to the court regarding the proper jury instructions to be given at trial. Specifically, the parties disagreed over the
ANDERS BRIEF
{¶6} Appellant‘s counsel has filed an Anders brief in this action. Under Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, counsel may ask permission to withdraw from a case when counsel has conscientiously examined the record, can discern no meritorious claims for appeal, and has determined the case to be wholly frivolous. Id. at 744; State v. Adkins, Gallia App. No. 03CA27, 2004-Ohio-3627, at ¶ 8. Counsel‘s request to withdraw must be accompanied with a brief identifying anything in the record that could arguably support the client‘s appeal. Anders, 386 U.S. at 744; Adkins at ¶ 8. Further, counsel must provide the defendant with a copy of the brief and allow sufficient time for the defendant to raise any other issues, if the defendant chooses to do so. Id.
{¶8} In the current action, Appellant‘s counsel concludes the appeal is wholly frivolous and has asked permission to withdraw. Pursuant to Anders, counsel has filed a brief raising one potential assignment of error for this court to consider.
POTENTIAL ASSIGNMENT OF ERROR
“THE JUDGMENT AGAINST THE DEFENDANT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
ANALYSIS
{¶9} We agree with Appellant‘s counsel that an appeal based upon a manifest weight argument would be wholly frivolous. Appellant‘s potential assignment of error asserts the judgment was against the manifest weight of the evidence. Appellant‘s contention is premised on his argument that the
{¶10} Generally, a trial court has broad discretion in deciding how to fashion jury instructions. A trial court must not, however, fail to “fully and completely give the jury all instructions which are relevant and necessary for the jury to weigh the evidence and discharge its duty as the fact finder.” State v. Comen (1990), 50 Ohio St.3d 206, 553 N.E.2d 640, paragraph two of the syllabus. Additionally, a trial court may not omit a requested instruction, if such instruction is ” ‘a correct, pertinent statement of the law and [is] appropriate to the facts * * *.’ ” State v. Lessin (1993), 67 Ohio St.3d 487, 493, 620 N.E.2d 72; quoting, State v. Nelson (1973), 36 Ohio St.2d 79, 303 N.E.2d 865, paragraph one of the syllabus.
{¶11} Here, Appellant was charged with menacing, in violation of
“No person shall knowingly cause another to believe that the offender will cause physical harm to the person or property of the other person, the other person‘s unborn, or a member of the other person‘s immediate family.”
Appellant‘s potential assignment of error only challenges his conviction with respect to count two, which alleged that he knowingly caused M.K. to
{¶12} Before trial and on appeal, Appellant contends that the definition of “immediate family” as set forth in Ohio‘s model jury instructions should have been provided to the jury. Appellant contends that had this instruction been given, Miranda Duty, as M.K.‘s parent, would not have fit the definition of “immediate family” and therefore he could not have been convicted on count two. OJI CR 503.22 “Menacing” provides that ” ‘immediate family’ means a person‘s spouse residing in the person‘s household, brothers and sisters of the whole or half blood, and children, including adopted children.” OJI CR 503.22 references
“As used in sections 2905.21 to 2905.24 of the Revised Code: * * * (I) ‘Immediate family’ means a person‘s spouse residing in the person‘s household, brothers and sisters of the whole or of the half blood, and
children, including adopted children.”
Clearly, menacing falls under a different chapter of the Revised Code.
{¶13} The trial court rejected the defendant‘s argument, and also disagreed with the definition provided in the model jury instruction. Instead, the trial court provided the following definition as part of its instructions to the jury:
“Immediate family means a person‘s spouse residing in the household, brothers and sisters of whole or half blood, children including adopted children, and parents or grandparents.”
For the following reasons, we conclude that the instruction given the to jury was proper with respect to defining a parent as a member of one‘s immediate family.
{¶14} First, as mentioned above, by its own terms, the definition of “immediate family” found in
{¶15} Nor can we find that Appellant‘s conviction was against the manifest weight of the evidence. When determining whether a criminal conviction is against the manifest weight of the evidence, we “will not reverse a conviction where there is substantial evidence upon which the [trier of fact] could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt.” State v. Eskridge (1988), 38 Ohio St.3d 56, 526 N.E.2d 304, paragraph two of the syllabus. See, also, State v. Smith, Pickaway App. No. 06CA7, 2007-Ohio-502 at ¶ 41. We “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 granted.” Smith at ¶ 41, citing State v. Garrow (1995), 103 Ohio App.3d 368, 370-371, 659 N.E.2d 814; State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717. However, “[o]n the trial
{¶16} At trial, E.K. and M.K. both testified that Appellant made threats to kill them, as well as their mother. The evidence also reflects that E.K. and M.K. believed that Appellant would cause harm to their mother because they had witnessed prior violence between the couple. Appellant made these statements in the presence of his children while they were having weekend visitation with him, knowing that they could hear him. As such, the jury could have concluded that all the elements of the offense were supported by substantial evidence and proven beyond a reasonable doubt.
{¶17} Although Appellant‘s mother, Barbara Kendall, provided a different version of the events, the weight to be given the evidence and the credibility of the witnesses were primarily for the trier of fact to determine. State v. DeHass, supra, at paragraph one of the syllabus. Moreover, our review of the record does not persuade us that the trier of fact clearly lost its way and created a manifest miscarriage of justice in finding Appellant guilty on the second count of menacing.
{¶18} As such, we agree with Appellant‘s counsel that an appeal based upon a manifest weight argument would be wholly frivolous. Further, our
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee recover of Appellant costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Marietta Municipal Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Exceptions.
Abele, J. and Kline, J.: Concur in Judgment and Opinion.
For the Court,
BY:
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.