STATE OF OHIO v. RONALD H. PLEBAN
C.A. No. 10CA009789
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
June 30, 2011
[Cite as State v. Pleban, 2011-Ohio-3254.]
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 09CR077940
Dated: June 30, 2011
CARR, Presiding Judge.
{1} Appellant, Ronald Pleban, appeals his conviction out of the Lorain County Court of Common Pleas. This Court affirms.
I.
{2} On April 23, 2009, Pleban was indicted on one count of inducing panic in violation of
{4} Pleban filed a timely appeal, in which he raises three assignments of error.
II.
ASSIGNMENT OF ERROR I
“PLEBAN’S CONVICTION FOR INDUCING PANIC WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE, AND MUST BE REVERSED.”
{5} Pleban argues that his conviction for inducing panic was not supported by sufficient evidence. Specifically, he argues that (1) the State failed to present sufficient evidence to prove aggravated menacing, the predicate offense on which the charge of inducing panic was premised; (2) the State failed to present sufficient evidence that Pleban committed the predicate offense with reckless disregard of the likelihood that its commission would cause serious public inconvenience or alarm; and (3) the State failed to present sufficient evidence that Pleban’s actions caused economic harm in an amount of five thousand dollars or more but less than one hundred thousand dollars. This Court disagrees.
{6} The law pertaining to a challenge to the sufficiency of the evidence is well settled:
“An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt. The 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. Galloway (Jan. 31, 2001), 9th Dist. No. 19752.
The test for sufficiency requires a determination of whether the State has met its burden of production at trial. State v. Walker (Dec. 12, 2001), 9th Dist. No. 20559; see, also, State v. Thompkins (1997), 78 Ohio St.3d 380, 390.
{7} Pleban was convicted of inducing panic in violation of
Predicate Offense
{8} The trial court found Pleban guilty of attempted aggravated menacing as the predicate offense underlying the charge of inducing panic. Pleban argues that, because he was charged with aggravated menacing, his due process rights were violated when the trial court convicted him of a different crime, specifically, attempted aggravated menacing. His argument is not well taken.
{10} Pleban was charged with aggravated menacing in violation of
“(a) Any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment;
(b) Any physical harm which carries a substantial risk of death;
(c) Any physical harm which involves some permanent incapacity, whether partial or total, or which involves some temporary, substantial incapacity;
(d) Any physical harm which involves some permanent disfigurement, or which involves some temporary, serious disfigurement;
(e) Any physical harm which involves acute pain of such duration as to result in substantial suffering, or that involves any degree of prolonged or intractable pain.”
“(a) Results in substantial loss to the value of the property, or requires a substantial amount of time, effort, or money to repair or replace;
(b) Temporarily prevents the use or enjoyment of the property, or substantially interferes with its use or enjoyment for an extended period of time.”
{11} The State amended the charge immediately prior to trial to allege that Pleban’s wife Karen was the intended victim of aggravated menacing.
{12} Susan Neely, communications officer from the Lorain County Sheriff’s Department (“LCSD“), testified that she received a phone call from Karen Pleban on February 25, 2009, regarding her husband. The recorded call was played in court. Mrs. Pleban reported to the LCSD that she had left her husband that day because of his ongoing erratic behavior and that he was now threatening to shoot and kill himself and the couple’s two dogs. She requested a welfare check on her husband because of his behavior, threats, and compromised health.
{13} Deputy Debra Eskut of the LCSD testified that she is a trained hostage negotiator with experience in suicide intervention and mental health counseling. She testified that she was dispatched to Pleban’s home regarding an older male who threatened to harm himself. She testified that Mrs. Pleban stayed at the scene all night and never asked law enforcement to abandon their efforts. Deputy Eskut testified that Mrs. Pleban appeared upset, stressed, and worried throughout the incident.
{14} Deputy Eskut testified that she negotiated with Pleban throughout the night by telephone and that those calls were recorded until shortly after 11:30 p.m. when her phone went dead and she was forced to communicate with Pleban through the on-site command vehicle rather than her cruiser and dispatch. The recordings of her conversations with Pleban until they could no longer be recorded were admitted into evidence. The recordings evidence Pleban’s assertion that he was despondent and intended to shoot and kill himself and the couple’s two dogs, as earlier reported by Mrs. Pleban to the LCSD dispatch center. Pleban informed Deputy Eskut that one of the dogs belonged to his wife and that the couple thought of the dogs as their children.
{15} Sergeant Daniel Ashdown of the LCSD testified that he responded to a “stand-off situation” near Pleban’s home. He testified that his unit relieved one of the perimeter units at 11:15 p.m. at the intersection of Woodhill and Galaxy, where Mrs. Pleban also remained all night. The sergeant testified that Mrs. Pleban never requested that law enforcement call off their efforts.
{17} Rose Temas testified for the defense. She testified that she is Karen Pleban’s sister and that Karen contacted her on February 25, 2009, over concerns for her husband’s well being. Ms. Temas testified that her sister was very concerned because Pleban told her he was planning to hurt himself and the couple’s dogs. Ms. Temas testified that her sister asserted that she was not going back home because her husband had been drinking and “she didn’t know what to expect.” Ms. Temas testified that she spoke with Pleban on the phone and he threatened to hurt the couple’s dogs and do whatever he could to get his wife to return home.
{18} Karen Pleban testified in her husband’s defense. She testified that she left her husband on February 25, 2009, because his on-going mood swings made him unpredictable and she “couldn’t take it anymore.” Mrs. Pleban testified that her husband threatened to kill himself, as well as the couple’s dogs, if she would not agree to return to him. She admitted that there was one time that evening that she was concerned for the dogs, but she testified that she otherwise did not take his threats seriously. Mrs. Pleban testified that she believed that her husband’s threats were just a way to compel her to return home. She asserted, however, that law enforcement should have recognized from their involvement with Pleban that night that he was “not right,” “not balanced,” “unstable,” and should have been transported for psychiatric intervention at Nord Center.
Reckless Disregard of the Likelihood of Serious Public Inconvenience or Alarm
{20} Pleban argues that the State presented insufficient evidence to establish that he acted with reckless disregard of the likelihood that his attempt to cause his wife to believe that he would shoot himself and the couple’s dogs would likely cause serious public inconvenience or alarm. This Court disagrees.
{22} The 2-3-hours long recording of the telephone communications between Deputy Eskut and Pleban evidence that he was aware that Ms. Eskut was an employee of the LCSD and that law enforcement was involved in the situation. Deputy Eskut initiated her conversation with Pleban by informing him that she was calling on behalf of the sheriff’s department. On numerous occasions she referred to herself within the context of the sheriff’s department. Pleban repeatedly indicated that he understood that she was affiliated with the sheriff’s department and repeatedly assured her that he would not hurt her because he would never shoot a police officer. Pleban frequently indicated that he believed that there were snipers in the area ready to shoot him, and Deputy Eskut responded every time that they had not mobilized snipers and that they merely wanted to help Pleban. Although Pleban repeatedly asserted that he would not harm a police officer, he continuously asserted that he was planning to shoot and kill himself and the family’s two dogs. Pleban gleefully described the numerous firearms he had in the house, including two loaded .45 Magnum pistols with hollow point bullets which he had next to him. Pleban bragged that he had “all kinds of ways to kill [him]self” and that he “would be dead before the cops get in here.” While Deputy Eskut was able to calm Pleban down at times, he consistently refused to leave his house and talk with her despite her assertions that she would not leave until they had resolved his stand-off.
{24} Sergeant Ashdown testified that multiple units and SWAT team members were sent to the area to prevent traffic from entering the area, to notify residents within the perimeter to remain indoors, to evacuate other residents in close proximity to Pleban’s home, and to escort other residents out of their homes safely if they had to leave.
{25} Thomas Kelley, the emergency management homeland security director for Lorain County, testified that at approximately 4:00 a.m. on February 26, 2009, as the armed stand-off situation continued, he notified the Elyria school system regarding the road closures necessitated by safety concerns and directed the schools to reroute buses for the three affected schools in the situation area.
{26} Richard Nielson, director of business services for the Elyria city school district, testified that he received phone calls on February 26, 2009, from the transportation facility and the LCSD requesting the rerouting of all schools buses in the Murray Ridge area because of a hostage situation. He testified that 120-180 students were disrupted. Mr. Nielson testified that the necessary rerouting caused inconvenience because children arrived late to school, educational
{27} Deputy Eskut testified that Mrs. Pleban remained on scene all night and that she had on-going contact with Mrs. Pleban during the course of her negotiations with Pleban, informing Mrs. Pleban regarding the situation with her husband. The deputy testified that Mrs. Pleban remained worried and upset during her husband’s stand-off with law enforcement. Deputy Eskut testified that Mrs. Pleban never criticized the actions of the law enforcement/SWAT personnel, never requested that she be allowed to enter her home or speak with her husband, and never recanted her earlier statements about her husband’s instability.
{28} Reviewing the evidence in a light most favorable to the State, this Court concludes that any rational trier of fact could have found the essential elements of the charge of inducing panic were proved beyond a reasonable doubt. See Jenks at paragraph two of the syllabus. The State presented evidence that Pleban attempted to cause his wife to believe that he would kill himself and the couple’s two dogs. The evidence demonstrated that Mrs. Pleban was aware of the existence of numerous firearms and ammunition in the couple’s home. She had also conveyed to family, friends, and law enforcement her observations regarding her husband’s ongoing erratic behavior and instability. The State presented evidence that Mrs. Pleban informed her husband that she planned to notify the LCSD because of his threats of harm. The evidence demonstrated that Pleban knew that law enforcement was involved in the situation and that they would not leave until the situation had been resolved, specifically, that he would cease his armed stand-off and exit his home. The State presented evidence that, early in the negotiations with Deputy Eskut, Pleban believed that there was greater involvement by law enforcement than there was at that time. Specifically, Pleban stated that he believed that snipers had been deployed to
{29} Pleban also argues that the State failed to present sufficient evidence of inducing panic because suicide is not a crime and, therefore, does not constitute an offense of violence, which is necessary to establish inducing panic. The State, however, did not charge Pleban with inducing panic in violation of
Economic Harm
{30} Pleban argues that the State presented insufficient evidence of the amount of economic harm caused by his commission of the offense.
{31} Pleban argues that the amount of economic harm constitutes an element of the offense of inducing panic. This Court disagrees.
{32} The value of the economic harm caused by Pleban’s commission of the crime of inducing panic merely constitutes a special finding that serves to enhance the penalty of the offense. See State v. Smith, 121 Ohio St.3d 409, 2009-Ohio-787, at ¶13 (holding that “the value of stolen property is not an essential element of the offense of theft but, rather, is a finding that enhances the penalty of the offense. As such, it is submitted to a fact-finder for a special finding in order to determine the degree of the offense.“)
{33}
{34} Sergeant Ashdown testified that he compiled a “rough estimate” of the costs associated with this incident by obtaining cost-related information from the supervisors of the various agencies and services involved. He testified that Captain Cavanaugh, the SWAT commander regarding the incident, provided him with personnel costs for the numerous SWAT team members deployed to the scene. He testified that Tom Kelley provided costs for deployment and operation of the on-site command post. Sergeant Ashdown testified that Assistant Chief Scarboro of the Elyria Township Fire Department provided the costs for the emergency/medical squads and crew on scene. Finally, the sergeant testified that he personally calculated the costs associated with LCSD personnel on scene, including himself; his predecessor on the scene, Sergeant Gallaher; and all perimeter units comprised of ground patrol forces. He emphasized that, while these units were on the scene of the stand-off at Pleban’s residence, they were not available to respond to any other calls. Sergeant Ashdown testified that the cost incurred by the government to respond to the situation created by Pleban was $10,340.50.
{35} Pleban complains that Sergeant Ashdown included his own pay in the calculation of costs even though he was already on duty the night of February 25, 2009. The statute, however, defines “economic harm” broadly, including “all costs” incurred by any law enforcement officer and other emergency-type personnel.
{36} Pleban also argues that Sergeant Ashdown’s testimony was speculative. Sergeant Ashdown testified that he served as the liaison on scene between the SWAT commander and the communications unit. Accordingly, he was aware of the nature and extent of personnel and equipment deployed to the area. Moreover, the sergeant testified that he collected information regarding costs associated with the response by law enforcement and other service agencies from the supervisors of the involved units and crews. Given Sergeant Ashdown’s role in regard to the incident, Pleban’s argument that his calculation of the economic harm realized was merely speculative must fail.
{37} Reviewing the evidence in a light most favorable to the State, this Court concludes that any rational trier of fact could have found that the State presented sufficient evidence of the economic harm incurred as a result of Pleban’s actions. Pleban’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
“PLEBAN WAS DENIED A FAIR TRIAL THROUGH PROSECUTORIAL MISCONDUCT, MERITING REVERSAL OF HIS CONVICTIONS.”
{38} Pleban argues that his convictions must be overturned on the basis of prosecutorial misconduct. This Court disagrees.
{39} When considering whether certain remarks constitute prosecutorial misconduct, a reviewing court must determine “(1) whether the remarks were improper and (2) if so, whether the remarks prejudicially affected the accused’s substantial rights.” State v. Jackson, 107 Ohio St.3d 300, 2006-Ohio-1, at ¶142, citing State v. Smith (1984), 14 Ohio St.3d 13, 14. The Ohio Supreme Court continued that
“[t]he touchstone of analysis ‘is the fairness of the trial, not the culpability of the prosecutor.’ This court will not deem a trial unfair if, in the context of the entire trial, it appears beyond a reasonable doubt that the jury would have found the defendant guilty even without the improper comments.” (Internal citations omitted.) Jackson at ¶142.
The prosecutor’s conduct must be considered in the context of the entire trial. See Darden v. Wainwright (1986), 477 U.S. 168, 181-182.
{40} Pleban’s first argues that the assistant prosecutor improperly questioned Mrs. Pleban during cross-examination by eliciting irrelevant testimony and attempting to impeach her in contravention of
{41} An appellant’s captioned assignment of error “provides this Court with a roadmap on appeal and directs this Court’s analysis.” State v. Marzolf, 9th Dist. No. 24459, 2009-Ohio-3001, at ¶16.
{42} Pleban also asserts that the assistant prosecutor’s questioning of Mrs. Pleban regarding any plans by her to file a civil lawsuit against the county unfairly prejudiced her
{43} Assuming arguendo, however, that the assistant prosecutor’s questions on cross-examination were improper, the remarks did not prejudicially affect Pleban’s substantial rights. Within the context of the entire trial, this Court concludes that Pleban’s trial was not unfair because it appears beyond a reasonable doubt that the trier of fact would have convicted Pleban even in the absence of the State’s improper questioning of Mrs. Pleban. The evidence presented by the State demonstrates Pleban’s guilt beyond a reasonable doubt. Accordingly, Pleban’s argument that the assistant prosecutor’s questioning of Mrs. Pleban necessitates reversal of his conviction must fail.
{44} Finally, Pleban argues that the assistant prosecutor’s half-page comment in his post-trial brief in lieu of closing argument regarding his belief that Mrs. Pleban’s testimony was incredible further prejudiced his right to a fair trial. Pleban argues that the State again improperly speculated as to an improper motive by Mrs. Pleban premised on her desire to file a civil lawsuit against the county.
{45} Generally, a prosecutor is allowed wide latitude in the closing argument to present his most convincing positions to the trier of fact, and “[the trier of fact] should be given credit for sufficient common sense and sound judgment” to weigh the prosecutor’s words appropriately. State v. Woodards (1966), 6 Ohio St.2d 14, 26; see, also, State v. Smith, 9th Dist. Nos. 01CA0039, 01CA0055, 2002-Ohio-4402, at ¶96. “It is well settled that statements made by
ASSIGNMENT OF ERROR III
“PLEBAN WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL, MERITING REVERSAL OF HIS CONVICTIONS.”
{46} Pleban argues that he was denied his right to the effective assistance of counsel. This Court disagrees.
{47} This Court uses a two-step process as set forth in Strickland v. Washington (1984), 466 U.S. 668, 687, to determine whether a defendant’s right to the effective assistance of counsel has been violated.
“First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id.
{49} This Court must analyze the “reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.” Id. at 690. The defendant must first identify the acts or omissions of his attorney that he claims were not the result of reasonable professional judgment. This Court must then decide whether counsel’s conduct fell outside the range of professional competence. Id.
{50} Pleban bears the burden of proving that counsel’s assistance was ineffective. State v. Hoehn, 9th Dist. No. 03CA0076-M, 2004-Ohio-1419, at ¶44, citing State v. Colon, 9th Dist. No. 20949, 2002-Ohio-3985, at ¶49; State v. Smith (1985), 17 Ohio St.3d 98, 100. In this regard, there is a “strong presumption [] that licensed attorneys are competent and that the challenged action is the product of a sound strategy.” State v. Watson (July 30, 1997), 9th Dist. No. 18215. In addition, “debatable trial tactics do not give rise to a claim for ineffective assistance of counsel.” Hoehn at ¶45, quoting In re Simon (June 13, 2001), 9th Dist. No. 00CA0072, citing State v. Clayton (1980), 62 Ohio St.2d 45, 49. Even if this Court questions trial counsel’s strategic decisions, we must defer to his judgment. Clayton, 62 Ohio St.2d at 49. The Ohio Supreme Court has stated:
“‘We deem it misleading to decide an issue of competency by using, as a measuring rod, only those criteria defined as the best of available practices in the defense field.’ *** Counsel chose a strategy that proved ineffective, but the fact that there was another and better strategy available does not amount to a breach of
an essential duty to his client.” Id., quoting State v. Lytle (1976), 48 Ohio St.2d 391, 396.
{51} “[A] defendant is not deprived of effective assistance of counsel when counsel chooses, for strategical reasons, not to pursue every possible trial tactic.” State v. Brown (1988), 38 Ohio St.3d 305, 319, citing State v. Johnson (1986), 24 Ohio St.3d 87. In addition, “the end result of tactical trial decisions need not be positive in order for counsel to be considered ‘effective.’” State v. Awkal (1996), 76 Ohio St.3d 324, 337.
{52} The Ohio Supreme Court has recognized that a court need not analyze both prongs of the Strickland test, where the issue may be disposed upon consideration of one of the factors. Bradley, 42 Ohio St.3d at 143. Specifically,
“‘Although we have discussed the performance component of an ineffectiveness claim prior to the prejudice component, there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing in one. In particular, a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result.’” Bradley, 42 Ohio St.3d at 143, quoting Strickland, 466 U.S. at 697.
{53} Pleban argues that trial counsel was ineffective for failing to object to the admission of certain irrelevant or otherwise inadmissible evidence, to wit: (1) recordings of Mrs. Pleban’s 911 call; (2) recordings of Deputy Eskut’s negotiations with Pleban; and (3) photographs and testimony regarding the Plebans’ firearms. We reiterate that there is a presumption that a trial judge knows the law and considers only relevant, material, and competent evidence during his deliberation. State v. Thomas, 97 Ohio St.3d 309, 2002-Ohio-6624, at ¶57.
{55} The recorded conversations between Deputy Eskut and Pleban were both relevant and otherwise admissible pursuant to
{56} Finally, evidence relating to the existence of the numerous firearms found in Pleban’s home after his arrest was relevant to demonstrate that Pleban knew that his threats of serious physical harm might be taken seriously by his wife, the intended victim of the charge of aggravated menacing. In addition, such evidence was relevant to demonstrate the reasonableness of the response by law enforcement in establishing road blocks, evacuating neighbors, and rerouting school buses, all responses which caused serious public inconvenience or alarm. In addition, the trial court is presumed to have disregarded any evidence deemed merely cumulative.
{57} Pleban has not demonstrated that defense counsel’s failure to object to the admission of the challenged evidence fell outside the range of professional competence. Accordingly, this Court need not consider the issue of prejudice. Pleban’s third assignment of error is overruled.
{58} Pleban’s assignments of error are overruled. The judgment of the Lorain County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
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.
DONNA J. CARR
FOR THE COURT
WHITMORE, J.
MOORE, J.
CONCUR
APPEARANCES:
JACQUENETTE S. CORGAN, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting Attorney, for Appellee.