STATE OF OHIO, PLAINTIFF-APPELLEE, v. NICHOLAS J. KINSTLE, DEFENDANT-APPELLANT.
CASE NO. 1-11-45
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
December 17, 2012
[Cite as State v. Kinstle, 2012-Ohio-5952.]
ROGERS, J.
OPINION; Appeal from Allen County Common Pleas Court; Trial Court No. CR2011 0048; Judgment Affirmed
APPEARANCES:
Christopher T. Travis for Appellant
Jana E. Emerick for Appellee
{¶1} Defendant-Appellant, Nicholas Kinstle, appeals the judgment of the Court of Common Pleas of Allen County convicting him of 23 counts of intimidation and sentencing him to a total prison term of eight years. On appeal, Kinstle argues that the trial court erred by (1) failing to dismiss the indictment as violative of the United States and Ohio Constitutions; (2) entering guilty verdicts that were against the manifest weight of the evidence; and (3) abusing its discretion in sentencing him to eight years in prison. For the reasons that follow, we affirm the judgment of the trial court.
{¶2} On February 17, 2011, the Allen County Grand Jury indicted Kinstle with 23 counts of intimidation in violation of
{¶3} The indictment arose out of Kinstle‘s production and transmission of various notarized documents to the above-named victims demanding that they abstain from performing certain actions against him or pay him a substantial amount of money. The documents have the veneer of being official legal filings due to their format and language, but none of them were ever filed with a court. At the time of the receipt of these documents, each victim was involved in legal proceedings against Kinstle as a judge, witness, or governmental official.
{¶4} On May 25, 2011, Kinstle moved to dismiss the indictment on the basis that
{¶5} The jury trial of this matter then commenced on June 27, 2011 and continued through June 29, 2011. Testimony was adduced from all of the victims identified in the indictment, except for Sam Bassitt, Dan Reiff, and Greg Sneary, the three elected members of the Allen County Board of County Commissioners. This testimony established that three previous legal actions were relevant to this matter and that either during or after the pendency
{¶6} The first relevant legal action was a 2005 tax foreclosure action against Kinstle. At that time, he owned property at 3320 Swaney Road in Harrod, Ohio.1 Since Kinstle failed to pay the real estate taxes on the property for 10 years, Rhonda Eddy, as the Allen County Treasurer, initiated a tax foreclosure action. During the course of the action, James Link was appointed to serve as County Treasurer while Ms. Eddy became the Allen County Auditor.
{¶7} Judge Richard Warren of the Allen County Court of Common Pleas presided over the action and granted a foreclosure decree in favor of the County Treasurer. Brandon Provonsil testified that he was interested in bidding on the property during the foreclosure process and that he visited the property to inspect it. During his time there, Kinstle confronted Provonsil, explained that he was undergoing the foreclosure process, and made a “veiled threat” against Provonsil. Trial Tr., p. 141.
{¶8} The Allen County Sheriff‘s Department, led by Sheriff Samuel Crish, conducted two auctions of the property, but neither produced a willing bidder. As a result, the Allen County Board of County Commissioners was offered the possibility of taking the property. After considering the possibility, the Commissioners, acting upon the advice of Allen County Administrator Becky Saine, decided to take the property. Consequently, on November 12, 2009, Judge Warren granted an order forfeiting the property to Allen County in care of the Board of County Commissioners. Once this order was handed down, Kinstle was required to vacate and while he was removing his personal effects from the property, Sergeant Alan Mefferd with the Allen County Sheriff‘s Department supervised Kinstle‘s actions. Sergeant Mefferd testified that during the course of his time on the property, Kinstle threatened to file legal action against Sergeant Mefferd and to take action against his pension.
{¶9} Judge Warren, Treasurer Link, Auditor Eddy, Sheriff Crish, Administrator Saine, Sergeant Mefferd, and Provonsil all testified that during the pendency of the foreclosure action, they received purportedly legal documents demanding that they stop their involvement in the foreclosure process and pay large sums of money to Kinstle. Administrator Saine further testified that Commissioners Bassitt, Reiff, and Sneary also received such documents through the mail. The State introduced the documents that each of these victims received into evidence.
{¶10} Generally, the documents contain the following relevant items. First, Kinstle mailed each victim an “Affidavit of Specific Negative Averment, Opportunity to Cure, and Counterclaim” that includes fifty-three “counts,” some of which refer to the actions of the above victims during the foreclosure action. Because Kinstle claimed the victims’ actions were unlawful, he demanded that they “dismiss any and all claims against [him],” pay him a certain amount of damages, or respond to the various allegations in his “specific negative averment.” State‘s Exhibit 1, p. 18.
{¶11} Subsequently, when the victims did not comply with Kinstle‘s demands, he mailed most of them a “Notice of Fault and Demand for Payment.”2 In these
{¶12} The second relevant legal action was a 2010 criminal case charging Kinstle with arson and criminal damaging. Judge Warren presided over the case, which arose from Kinstle‘s alleged action of setting fire to the grass on his property at 3320 Swaney Road. Allen County Sheriff Deputies Tim Jackson, Fred DePalma, Jerry Morris, Brock Douglass, and Gary Hook investigated the alleged arson. During the course of this investigation, the deputies spoke to Provonsil and several of Kinstle‘s neighbors, including Darin Rowe, Jerry Maus, Dean McCombs, Tim Binkley, and Kevin Kesner. Lieutenant Clyde Breitigan, the head of the Investigative Division of the Allen County Sheriff‘s Department, supervised the investigation.
{¶13} These officers and witnesses each received a similar set of documents from Kinstle during the pendency of the arson prosecution. Again, each victim received a “specific negative averment” that referred to his activities against Kinstle, that demanded he drop his claims against Kinstle, and that required him to pay a large sum of money or answer Kinstle‘s various allegations. When the victims did not comply, most victims then received a notice of fault stating that Kinstle was entitled to damages. In total, Kinstle demanded the following payments: (1) approximately $101 billion from Lieutenant Breitigan, Deputy DePalma, Deputy Morris, Brock Douglass, Deputy Jackson, and Deputy Hook; and (2) approximately $409 billion from Rowe and Kessner.3 There is no indication that McCombs, Binkley, or Maus received a “notice of fault and demand for payment.”
{¶14} The third relevant legal action was a civil action in which Kinstle was the named defendant. On September 8, 2009, Judge Jeffrey Reed found that Kinstle was a vexatious litigator. Consequently, Judge Reed ordered that Kinstle submit all proposed filings to him for approval and that Kinstle was only allowed to officially file his documents with the Allen County Clerk of Courts upon Judge Reed‘s approval. Due to Judge Reed‘s order, Margie Miller, a Deputy Clerk in the Clerk of Courts’ Office, refused to accept several of Kinstle‘s filings. While this order was still in effect, both Judge Reed and Deputy Clerk Miller received “specific negative averments” that were similar to the ones discussed above. Deputy Clerk Miller also received a “notice of fault and demand for payment” stating that Kinstle was entitled to approximately $111 billion from her. There is no indication that Judge Reed received such a notice.
{¶15} During the course of the State‘s case, Kinstle agreed to the following stipulation: “As to all notarized documents sent to alleged victims in this case, the defendant appeared before the document, and either sent the document or caused the
{¶16} Kinstle then testified in his own defense, but his testimony was difficult to follow and mainly focused on his beliefs as they relate to the Redemptionist movement. The Redemptionists are a conspiracy-theory based movement that provides followers with purportedly legal ways to obtain certain sums of money from individuals under the Uniform Commercial Code.4 After Kinstle‘s testimony, he rested and renewed his motion for acquittal, but the trial court again denied it.
{¶17} On June 29, 2011, the jury returned a guilty verdict on all counts alleged in the indictment. The trial court held a sentencing hearing on July 14, 2011. Kinstle moved for the convictions to be merged as allied offenses of similar import, but the trial court denied the motion. After hearing arguments from counsel and a statement by Kinstle, the trial court, citing the statutory factors for sentencing and Kinstle‘s criminal background, which included convictions for felonious assault, resisting arrest, and criminal trespass, pronounced a prison term composed of two consecutive four year sentences, for a total term of eight years. On July 19, 2011, the trial court issued a judgment entry of sentencing that included the sentence and the following basis for it:
the record, oral statements, any victim impact statements, the presentence report, the purposes and principles of sentencing under
R.C. 2929.11 , the seriousness and recidivism factors relevant to the offenses and the offender pursuant toR.C. 2929.12 , and the need for deterrence, incapacitation, rehabilitation, and restitution. (Docket No. 169, p.1).
{¶18} Kinstle filed this timely appeal, presenting the following assignments of error for our review.5
Assignment of Error No. I
THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY OVERRULING HIS MOTION TO DISMISS THE INDICTMENT AS A VIOLATION OF THE 14TH AMENDMENT TO THE UNITED STATES CONSTITUTION, AS WELL AS THE ARTICLE I SECTION I OF THE OHIO CONSTITUTION.
Assignment of Error No. II
THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT/DEFENDANT BY ENTERING A GUILTY VERDICT THAT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
Assignment of Error No. III
Assignment of Error No. I
{¶19} In his first assignment of error, Kinstle contends that the trial court erroneously overruled his motion to dismiss the indictment as violative of the United States and Ohio Constitutions. Specifically, Kinstle argues (1) that
{¶20} We preliminarily note that Kinstle preserved this issue for appellate review by filing a “Motion of the Defense to Dismiss All 23 Counts for Unconstitutionality of
Overbreadth
{¶21} The overbreadth doctrine only applies in First Amendment contexts. State v. Collier, 62 Ohio St.3d 267, 272 (1991), citing Schall v. Martin, 467 U.S. 253, 269, 104 S.Ct. 2403 (1984). “A statute is overbroad where it prohibits activity that would otherwise be constitutionally protected.” State v. Hart, 110 Ohio App.3d 250, 257 (3d Dist. 1996), citing Grayned v. Rockford, 408 U.S. 104, 114, 92 S.Ct. 2294 (1972). When performing an overbreadth analysis, we first consider if the statute regulates speech content or speech-related conduct. Village of Kelleys Island v. Joyce, 146 Ohio App.3d 92, 101 (6th Dist. 2001). Where the statute regulates speech content, it must be narrowly tailored to further a compelling state interest. State v. Snyder, 155 Ohio App.3d 453, 2003-Ohio-6399, ¶ 18, citing Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908 (1973). However, “where conduct and not merely speech is involved, * * * the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute‘s plainly legitimate sweep.” Broadrick at 615. Since
{¶22} State v. Roten, 149 Ohio App.3d 182, 2002-Ohio-4488 (12th Dist.), provides persuasive guidance to this matter. There, the defendant, like Kinstle, challenged
The statute[] do[es] not impinge or impermissibly inhibit [the defendant‘s] exercise of his First Amendment rights, including, but not limited to, his right to voice displeasure with governmental conduct and policies and to request redress of grievances. * * * [As opposed to inhibiting these rights,] the statute[] proscribe[s] the use of documents not lawfully issued to intimidate * * * public servants. Roten at ¶ 34.
{¶23} We adopt Roten‘s reasoning and find that
{¶24} Consequently, we do not find that
Vagueness
{¶25} The vagueness doctrine, which is premised on due process concerns, requires that statutes give “fair notice of offending conduct.” State v. Lewis, 131 Ohio App.3d 229, 235 (3d Dist. 1999). A statute is void for vagueness in two scenarios. First, a statute is impermissibly vague if “men of common intelligence must necessarily guess at its meaning and differ as to its application * * *” State v. Glover, 17 Ohio App.3d 256, 257 (8th Dist. 1984). Second, a statute fails for vagueness “if it authorizes or encourages arbitrary and discriminatory conduct.” State v. Sommerfield, 3d Dist. No. 14-07-09, 2007-Ohio-6427, ¶ 12. Since “[i]mpossible standards of specificity are not required,” Haskell, 2004-Ohio-3345, at ¶ 22, we merely assess “whether the [statutory] language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices,” Lewis at 236, quoting Jordan v. De George, 341 U.S. 223, 231-32, 71 S.Ct. 703 (1951).
{¶26} We previously addressed the constitutionality of
{¶27} Consequently, we do not find that
Constitutionality of R.C. 2921.03 ‘s Application
{¶28} When a defendant asserts that a statute is unconstitutional as applied to the particular circumstances of his case, “the burden is upon [him] to present clear and convincing evidence of a presently existing set of facts which makes the [statute] unconstitutional and void when applied thereto.” Cleveland Gear Co. v. Limbach, 35 Ohio St.3d 229, 231 (1988). In assessing the existence of such clear and convincing evidence, we first determine whether the defendant “had a constitutionally protected right to engage in the type of activity he allegedly committed.” State v. Bilder, 99 Ohio App.3d 653, 663-64 (9th Dist. 1994). If the defendant did not engage in a protected activity, “then his argument that the statute is unconstitutional as applied must fail.” State v. Dario, 106 Ohio App.3d 232, 240 (1st Dist. 1995).
{¶29} Clear and convincing evidence is “[t]he measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal.” In re Estate of Haynes, 25 Ohio St.3d 101, 104 (1986). In addition, when “the degree of proof required to sustain an issue must be clear and convincing, a reviewing court will examine the record to determine whether the trier of facts had sufficient evidence before it to satisfy the requisite degree of proof.” Cross v. Ledford, 161 Ohio St. 469, 477 (1954). Thus, we are required to assess whether the trial court‘s determination was supported by sufficient credible evidence to satisfy the requisite degree of proof. In re McCann, 12th Dist. No. CA2003-02-017, 2004-Ohio-283, ¶ 12.
{¶30} Kinstle suggests that the application of
{¶31} In sum,
{¶32} Accordingly, we overrule Kinstle‘s first assignment of error.
Assignment of Error No. II
{¶33} In his second assignment of error, Kinstle argues that his guilty verdicts on all 23 counts alleged in the indictment were against the manifest weight of the evidence. We disagree.
{¶34} When an appellate court analyzes a conviction under the manifest
{¶35} Kinstle was charged with 23 violations of
No person, knowingly and by force or by unlawful threat of harm to any person or property, shall attempt to influence, intimidate, or hinder a public servant, a party official, or an attorney or witness involved in a civil action or proceeding in the discharge of the duties of the public servant, party official, attorney, or witness.
Courts have read
{¶36} A review of the record discloses that the State presented overwhelming evidence to prove each violation of
{¶37} On appeal, Kinstle attempts to sidestep this overwhelming evidence by focusing on the failure of the State to call Commissioners Bassitt, Reiff, and Sneary to the stand. But, this failure is immaterial to the finding of guilt on Counts XXI, XXII, and XXIII. Administrator Saine testified that Kinstle‘s documents demanding the commissioners to stop their actions against him were received in the County Commissioners’ office. Further, Kinstle
{¶38} Kinstle also argues that the State had to present evidence that Kinstle‘s actions actually intimidated the victims and prevented them from not performing their public duties or acting as witnesses against Kinstle.
{¶39} In support of his contentions, Kinstle cites to State v. Bowshier, 167 Ohio App.3d 87, 2006-Ohio-2822 (2d Dist.). There, the defendant verbally threatened physical harm to the arresting police officer during the course of the arrest. Based on its review of the record, the court found that the defendant‘s intimidation conviction was against the manifest weight of the evidence because “nothing in his remarks * * * suggested, either expressly or by implication, that [the defendant] would harm [the officer] unless [the officer] let him go or went easy on him. An attempt to * * * intimidate * * * [the officer] would involve a quid pro quo: let me go or I will hurt you.” Id. at ¶ 68.
{¶40} Bowshier is inapplicable here. Unlike the defendant there, Kinstle did offer a quid pro quo arrangement. Essentially, each of the victims had to stop what he or she was doing in the legal actions against Kinstle, or Kinstle would make the victim pay him millions or billions of dollars. Kinstle did this fully aware of the victims’ roles in the legal actions against him, which is reflected by his references to the matters in his “specific negative averments.” Thus, we decline to follow Bowshier‘s guidance in this matter.
{¶41} In sum, Kinstle‘s arguments are unavailing and we find that his convictions on all 23 counts alleged in the indictment were not against the manifest weight of the evidence.
{¶42} Accordingly, we overrule Kinstle‘s second assignment of error.
Assignment of Error No. III
{¶43} In his third assignment of error, Kinstle claims that the trial court abused its discretion in sentencing him to two consecutive sentences of four years for a total prison term of eight years. Specifically, he suggests that all of the counts in the indictment should have merged as allied offenses of similar import and that the trial court improperly weighed the sentencing factors contained in
Allied Offenses of Similar Import
{¶44}
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the
defendant may be convicted of all of them. R.C. 2941.25 .
When applying
{¶45} Here, Kinstle was charged with 23 separate counts of intimidation in violation of
was not convicted of allied offenses of similar import and the trial court properly sentenced him on each count of intimidation.
Sentencing
{¶46} We preliminarily note that the trial court‘s sentence was imposed on July 19, 2011, before the effective date of House Bill 86 (“H.B. 86“), which amended
{¶47} A reviewing court must conduct a meaningful review of the trial court‘s imposed sentence. State v. Daughenbaugh, 3d Dist. No. 16-07-07, 2007-Ohio-5774, ¶ 8. Such review allows the Court to “modify or vacate the sentence and remand the matter to the trial court for re-sentencing if the court clearly and convincingly finds that the record does not support the sentence or that the sentence is otherwise contrary to law.” Id.8
{¶48} Trial courts have plenary discretion to sentence an offender to any term of
{¶49}
{¶50} Additionally, when sentencing an offender, the trial court must consider the factors set forth under
{¶51} Here, the trial court indicated that it considered all of the following items when sentencing Kinstle:
the record, oral statements, any victim impact statements, the presentence report, the purposes and principles of sentencing under
R.C. 2929.11 , the seriousness and recidivism factors relevant to the offenses and the offender pursuant toR.C. 2929.12 , and the need for deterrence, incapacitation, rehabilitation, and restitution. (Docket No. 169, p.1).
Further, the trial court complied with former
the necessary statutory factors and consequently produced an inappropriate sentence.
{¶52} In sum, the counts in the indictment do not constitute allied offenses of similar import. Additionally, the trial court did not hand down an erroneous sentence.
{¶53} Accordingly, we overrule Kinstle‘s third assignment of error.
{¶54} Having found no error prejudicial to Kinstle herein, in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
PRESTON, J., concurs.
WILLAMOWSKI, J., concurs in Judgment Only.
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