STATE OF OHIO v. JACOB MYERS
C.A. No. 21AP0027
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
Dated: March 28, 2022
[Cite as State v. Myers, 2022-Ohio-991.]
CALLAHAN, Judge.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF WAYNE, OHIO CASE No. 2020 CRC-I 000335
{1} Appellant, Jacob Myers, appeals his convictions by the Wayne County Court of Common Pleas. This Court affirms.
I.
{2} In the early hours of May 22, 2020, police officers from the City of Wooster responded to a 911 call regarding a suspected overdose death. When they arrived at the residence in which the deceased, S.M., was located, they identified two males and two females. Upon conducting a protective sweep, they also located Mr. Myers and a third female, who were sleeping on a futon-style couch in the basement. Police found that it was difficult to engage the individuals at the scene in conversation, and no one was taken into custody with regard to the incident at that time.
{3} Later that day, two of the individuals who had been identified at the scene and a third woman, who had not been previously identified, came to the Wooster Police Department and
{4} Mr. Myers appealed, asserting two assignments of error.
II.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT‘S FINDING OF GUILT IS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
{6} Because sufficiency and manifest weight are separate and distinct questions, this Court has observed that “it is not appropriate to combine a sufficiency argument and a manifest weight argument within a single assignment of error.” State v. Seibert, 9th Dist. Wayne Nos. 20AP0013, 20AP0014, 2021-Ohio-3069, ¶ 13, quoting State v. Mukha, 9th Dist. Wayne No. 18AP0019, 2018-Ohio-4918, ¶ 11. See also State v. Perkins, 9th Dist. Wayne No. 20AP0031, 2021-Ohio-2630, ¶ 9;
Sufficiency of the Evidence
{7} “Whether a conviction is supported by sufficient evidence is a question of law that this Court reviews de novo.” State v. Williams, 9th Dist. Summit No. 24731, 2009-Ohio-6955, ¶ 18, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). The relevant inquiry is whether the prosecution has met its burden of production by presenting sufficient evidence to sustain a conviction. Thompkins at 390 (Cook, J., concurring). For purposes of a sufficiency analysis, this Court must view the evidence in the light most favorable to the State. Jackson v. Virginia, 443 U.S. 307, 319 (1979). We do not evaluate credibility, and we make all reasonable inferences in favor of the State. State v. Jenks, 61 Ohio St.3d 259, 273 (1991). The evidence is sufficient if it allows the trier of fact to reasonably conclude that the essential elements of the crime were proved beyond a reasonable doubt. Id.
{9} “Terrorize” has been defined according to its ordinary and common usage: “‘to fill with terror and anxiety.‘” State v. Suggs, 9th Dist. Summit Nos. 27812, 27865, 27866, 2016-Ohio-5692, ¶ 16, quoting State v. Chasteen, 12th Dist. Butler No. CA2007-12-308, 2009-Ohio-1163, ¶ 21, quoting State v. Eggleston, 11th Dist. Lake No. 2008-L-047, 2008-Ohio-6880, ¶ 30, fn. 1. Compare State v. Vigil, 8th Dist. Cuyahoga No. 103940, 2016-Ohio-7485, ¶ 22 (defining “terrorize” as “impress with terror [or] fear or to coerce by intimidation“). With respect to the culpable mental state of an accused, ”
{11} J.B. testified that, on the evening in question, she went to an apartment occupied by C.R. because she needed a ride after babysitting for a mutual acquaintance. Several other individuals, including Mr. Myers, were present. J.B. testified that she left the apartment at one point in the evening because she knew where they could obtain marijuana, but that they returned because C.R. “realized he didn‘t have his dope in his pocket[.]” When they returned to the apartment, she waited momentarily in the vehicle. J.B. testified that from that vantage point, she could see in the front door and, as a consequence, witnessed individuals inside the house flipping S.M. out of a recliner.1 J.B. recalled that she entered the house as individuals were throwing water on S.M., but S.M. did not respond.
{12} According to J.B., despite the unfolding medical emergency, C.R. “was worried about his dope[.]” At one point, according to J.B.‘s testimony, a female took J.B. upstairs and strip searched her. J.B. also testified that after briefly going upstairs himself, C.R. returned to the
{13} Viewing the evidence at trial in the light most favorable to the State, a jury could reasonably conclude beyond a reasonable doubt that Mr. Myers restrained J.B.‘s liberty by holding her at gunpoint while standing between her and the front door of the residence and denying her egress. A jury could also reasonably conclude, beyond a reasonable doubt, that Mr. Myers did so with the purpose to fill her with terror or anxiety or to coerce her to remain by means of intimidation. Accordingly, his conviction for kidnapping in violation of
{14} Mr. Myers was also convicted of possessing a weapon while under disability.
{15}
{16} This Court has concluded that turning off or denying access to an individual cellular phone, without more, is not sufficient evidence of disrupting public services. See State v. Bedford, 9th Dist. Summit Nos. 25048, 25066, 2010-Ohio-3577, ¶¶ 9-11, citing State v. Robinson, 124 Ohio St.3d 76, 2009-Ohio-5937, ¶ 32, and State v. Tayse, 9th Dist. Summit No. 23978, 2009-Ohio-1209, ¶ 23. Nonetheless, we have also stated that “[t]he gravamen * * * of the analysis is whether the services were interrupted or impaired in any significant way.” Bedford at ¶ 11. Compare James at ¶ 76. Consistent with this principle, evidence that an accused took a cellular phone away from a victim in order to prevent the victim from calling 911 will support a conviction under
{17} J.B. testified that as she called 911 to report the medical emergency that led to S.M.‘s death, Mr. Myers took her phone away from her and ended the call. She also testified that he restricted access to her phone and the phones of others present and prevented them from calling for assistance. This evidence, viewed in the light most favorable to the State, would reasonably permit a jury to conclude beyond a reasonable doubt that Mr. Myers violated
Manifest Weight of the Evidence
{18} When considering whether a conviction is against the manifest weight of the evidence, this Court applies a different standard. See State v. Martinez-Castro, 9th Dist. Lorain No. 18CA011361, 2019-Ohio-1155, ¶ 14, citing Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶¶ 11-13. To evaluate the weight of the evidence, this Court must:
review 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). A reversal on this basis is reserved for the exceptional case in which the evidence weighs heavily against the conviction. Id., citing State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
{20} Mr. Myers also appears to argue that his convictions for kidnapping and abduction are against the manifest weight of the evidence because J.B. was not restrained and her testimony was contradicted by other evidence in the record. As noted above, J.B. testified that C.R. gave Mr. Myers a gun and that Mr. Myers brandished the gun for approximately ninety minutes while standing between J.B. and the front door to the apartment, thus preventing her egress. For purposes of both
{21} Two witnesses who testified on behalf of the defense denied that anyone‘s liberty had been restrained on the evening in question. W.H.M., who along with J.B. provided a statement to police later in the day, claimed during his testimony that he did not remember anything related to the incident except that he was high. Another witness testified that she was in the residence throughout the evening and did not recall seeing anyone with a gun. T.O., who is C.R.‘s sister and
{22} On the other hand, the testimony of Officer Nate Koch, who responded to the scene and later interviewed J.B. and W.H.M., supported the details on J.B.‘s testimony in some respects. Officer Koch identified a firearm that he found in an upstairs room at the residence, and J.B. later identified it as the weapon that Mr. Myers used. He also testified that during their interviews, both J.B. and W.H.M. appeared to be frightened. Detective Gaetano Bremenour, who assisted with the investigation, explained that it proved to be difficult to speak with any of the witnesses to the events.
{23} With respect to his conviction for having a weapon under disability, Mr. Myers argues that although C.R. handed him a gun, he “immediately placed the weapon on the table in the apartment[,]” indicating that he “immediately surrendered the weapon thus making a conscious effort and purpose to avoid having it.” These assertions are not supported by any evidence in the record, however.
{24} This Court must “consider[] the credibility of witnesses” as part of our manifest weight review. Thompkins, 78 Ohio St.3d at 387, quoting Martin, 20 Ohio App.3d at 175. Nonetheless, this Court is mindful of the well-established principle that a trier of fact enjoys the best position to assess the credibility of witnesses. State v. Rivera, 9th Dist. Lorain No. 18CA011263, 2019-Ohio-62, ¶ 39, quoting State v. Johnson, 9th Dist. Summit No. 25161, 2010-
{25} Mr. Myers’ first assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 2
APPELLANT, JACOB MYERS, WAS DENIED HIS RIGHT TO DUE PROCESS AND OF ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION BECAUSE HIS TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE.
{26} Mr. Myers’ second assignment of error argues that he did not receive effective assistance of counsel. Specifically, he has argued that Counsel failed to obtain records of text messages that would have assisted in his defense and failed to adequately communicate with him while his case was pending.
{27} In order to demonstrate ineffective assistance of counsel, a defendant must show (1) deficiency in the performance of counsel “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” and (2) that the errors made by counsel were “so serious as to deprive the defendant of a fair trial[.]” Strickland v. Washington, 466 U.S. 668, 687 (1984). A defendant must demonstrate prejudice by showing that, but for counsel‘s errors, there is a reasonable possibility that the outcome of the trial would have been different. Id. at 694.
{28} In a direct appeal, ineffective assistance of counsel must be demonstrated by evidence within the record. See generally State v. Madrigal, 87 Ohio St.3d 378, 390-391 (2000). “‘[A] claim of ineffective assistance of counsel on direct appeal cannot be premised on decisions of trial counsel that are not reflected in the record of proceedings * * * [and] [s]peculation regarding the prejudicial effects of counsel‘s performance will not establish ineffective assistance
{29} The record on appeal does not contain any information regarding the text messages at issue. The substance of those records is, itself, speculative. Any conclusions regarding the performance of trial counsel with respect to those calls would also be speculative and cannot form the basis of error on direct appeal. See, e.g., State v. Grate, 164 Ohio St.3d 9, 2020-Ohio-5584, ¶ 69. See also State v. Castagnola, 9th Dist. Summit Nos. 29141, 29250, 2020-Ohio-1096, ¶ 27; State v. Fridley, 9th Dist. Wayne No. 17AP0029, 2019-Ohio-3412, ¶ 32. Similarly, “a claim of lack of communication between a defendant and his trial counsel is not one that can be borne out by the record. It relies upon information necessarily outside the record, and is therefore not an issue we can review on direct appeal.” State v. Lawson, 2d Dist. Greene No. 2020-CA-16, 2020-Ohio-6852, ¶ 106, quoting State v. Watters, 2d Dist. Clark No. 2015-CA-82, 2016-Ohio-8083, ¶ 27. See also State v. Consilio, 9th Dist. Summit No. 28409, 2017-Ohio-7913, ¶ 22.
{30} Mr. Myers’ second assignment of error is overruled.
III.
{31} Mr. Myers’ assignments of error are overruled. The judgment of the Wayne County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
LYNNE S. CALLAHAN
FOR THE COURT
HENSAL, P. J.
CARR, J.
CONCUR.
APPEARANCES:
KIMBERLY STOUT-SHERRER, Attorney at Law, for Appellant.
DANIEL R. LUTZ, Prosecuting Attorney, and JONATHAN D. HAMERS, Assistant Prosecuting Attorney, for Appellee.