STATE OF OHIO, Plaintiff-Appellee -vs- JEREMY REYNOLDS, Defendant-Appellant
Case No. 12-CA-6
COURT OF APPEALS, MORROW COUNTY, OHIO, FIFTH APPELLATE DISTRICT
September 24, 2012
2012-Ohio-4363
Hon. Patricia A. Delaney, P.J., Hon. W. Scott Gwin, J., Hon. Sheila G. Farmer, J.
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 11CR0083; JUDGMENT: Reversed
For Plaintiff-Appellee: JOCELYN STEFANCIN, 60 East High Street, Mt. Gilead, OH 43338
For Defendant-Appellant: JEREMY J. MASTERS, 250 East Broad Street, Suite 1400, Columbus, OH 43215
Farmer, J.
{¶1} On September 8, 2011, the Morrow County Grand Jury indicted appellant, Jeremy Reynolds, on two counts of witness intimidation in violation of
{¶2} A jury trial commenced on November 28, 2011. The jury found appellant guilty as charged. By judgment entry filed December 23, 2011, the trial court sentenced appellant to an aggregate term of fifty-four months in prison.
{¶3} Appellant filed an appeal and this matter is now before this court for consideration. Assignment of error is as follows:
I
{¶4} “THE TRIAL COURT ERRED WHEN IT HELD THAT SUFFICIENT EVIDENCE WAS PRESENTED TO CONVICT JEREMY REYNOLDS OF WITNESS INTIMIDATION, UNDER
I
{¶5} Appellant claims there was insufficient evidence to convict him of witness intimidation as the alleged act of intimidation did not occur while the witnesses were involved in a criminal act or proceeding (State v. Davis, 132 Ohio St.3d 25, 2012-Ohio-1654). We agree.
{¶7} Appellant was convicted of intimidation of a witness in violation of
{¶8} “No person, knowingly and by force or by unlawful threat of harm to any person or property, shall attempt to influence, intimidate, or hinder the victim of a crime in the filing or prosecution of criminal charges or an attorney or witness involved in a criminal action or proceeding in the discharge of the duties of the attorney or witness.”
{¶9} In State v. Malone, 121 Ohio St.3d 244, 2009-Ohio-310, ¶1, 15-18, 20-21, respectively, the Supreme Court of Ohio stated the following:
{¶10} “***The only issue that we address today is whether
{¶11} ”
{¶12} ” ‘For “action” the definition “includes all the formal proceedings in a court of justice attendant upon the demand of a right made by one person of another in such court, including an adjudication upon the right and its enforcement or denial by the court.” [Black‘s Law Dictionary (6th Ed.Rev.1990) 28]. “Proceeding” is the “[r]egular and orderly progress in form of law, including all possible steps in an action from its commencement to the execution of judgment.” Id. at 1204.’ Steckman, 70 Ohio St.3d at 432, 639 N.E.2d 83.
{¶13} “In State ex rel. Unger v. Quinn (1984), 9 Ohio St.3d 190, 9 OBR 504, 459 N.E.2d 866, this court included ‘criminal action’ in defining ‘prosecution’ as ’ “[a] criminal action; a proceeding instituted and carried on by due course of law, before a competent tribunal, for the purpose of determining the guilt or innocence of a person charged with crime.” ’ Id. at 191, 9 OBR 504, 459 N.E.2d 866, quoting Black‘s Law Dictionary (5th Ed.1979) 1099.
{¶15} “Protection of a witness in
{¶16} “The statute requires a witness‘s involvement in a criminal action or proceeding, not his or her potential involvement.***”
{¶17} In State v. Davis, 132 Ohio St.3d 25, 2012-Ohio-1654, ¶19, decided during the pendency of this appeal, the Supreme Court of Ohio clarified Malone and held the following:
{¶18} ”
{¶19} The Davis court at ¶3, 16-17, respectively, stated the following:
{¶20} “As we recently explained,
{¶21} “Moreover,
{¶22} “In this statute, the General Assembly has not only employed language indicating the need for court involvement, it has provided a stark contrast by pairing the witness-protection language with language explicitly protecting crime victims from intimidation immediately after a criminal act. Compare
{¶23} In the case sub judice, a criminal investigation was initiated with a telephone call to the police by Cynthia Griffith on July 30, 2011 after she had been robbed at the night depository of a local bank. T. at 160-165. It was the state‘s theory that this act met the Malone requirement as demonstrated by the prosecutor‘s opening statement:
{¶25} “***
{¶26} “Fifth element, a witness and the sixth element is involved in a criminal action or proceeding.
{¶27} “The way the law is written now, if these things happened prior to the police becoming involved, prior to police involvement or knowledge of the matter, nothing would be done about it. It is a poorly written statute. But what the statute says is, if there is an official action or proceeding and that occurred when the police arrived on the scene on July 30th of 2011.
{¶28} “Be mindful that the defendant is not charged with armed robbery. That issue is still open. He is charged with intimidation of two witnesses. Now, from all the evidence that will be presented today, the State of Ohio will ask that you convict Jeremy Reynolds of knowingly making an unlawful threat of harm to Todd Blevins and Rebecca Harris. And that in doing so, he attempted to intimidate them from speaking to the police.” T. at 147-149.
{¶29} And again during the prosecutor‘s closing argument:
{¶30} “The next element is the witness or the witnesses were involved in a criminal action or proceeding. Here you are going to have an exhibit. That exhibit is going to be that police report from July 30th, 2011 that the police officer wrote out and
{¶31} “And the time they use is really critical here. The proceeding starts and five days later is when the threats are made. The proceeding starts and five days later. The way the law is written, if prior to police involvement the threats have been made, it wouldn‘t be an offense. It is a defect in the laws of the State of Ohio and it is very problematic. But here we meet that technical retirement. First, the offense, five days later the threats are made.” T. at 628.
{¶32} We note a request for a bill of particulars was filed (November 17, 2011) and ordered by the trial court (November 18, 2011); however, no bill of particulars is included in the court file or noted on the docket.
{¶33} During the course of the investigation, warrants were issued on August 4, 2011 for two suspects, Todd Blevins and Rebecca Harris, for tampering with evidence possibly involved in the Griffith robbery. T. at 210.
{¶34} The state alleged that appellant intimidated Mr. Blevins and Ms. Harris on August 5, 2011. It is the state‘s position in its brief that the issuance of the warrants for Mr. Blevins and Ms. Harris on August 4, 2011 was sufficient to meet the definition of the intimidation statute. Unfortunately, as the opening statement and closing argument cited supra demonstrate, that was not the state‘s position at trial.
{¶35} Given the fact scenario argued as the “criminal action or proceeding,” we find the evidence was not sufficient under the law of Malone and Davis. The fact that the police investigation was ongoing and persons were interviewed and some were
{¶36} The sole assignment of error is granted.
{¶37} The judgment of the Court of Common Pleas of Morrow County, Ohio is hereby reversed.
By Farmer, J.
Delaney, P.J. and
Gwin, J. concur.
s / Sheila G. Farmer
s/ Patricia A. Delaney
s/ W. Scott Gwin
JUDGES
SGF/sg 905
STATE OF OHIO, Plaintiff-Appellee -vs- JEREMY REYNOLDS, Defendant-Appellant
CASE NO. 12-CA-6
IN THE COURT OF APPEALS FOR MORROW COUNTY, OHIO, FIFTH APPELLATE DISTRICT
2012-Ohio-4363
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Morrow County, Ohio is reversed. Costs to appellee.
s / Sheila G. Farmer
s/ Patricia A. Delaney
s/ W. Scott Gwin
JUDGES