State v. SouthState v. South
Attorney for Plaintiff-Appellee
RICHARD L. KAPLAN, Atty. Reg. No. 0027406, P.O. Box 751192, Dayton, Ohio 45475
Attorney for Defendant-Appellant
OPINION
Rendered on the 12th day of October, 2018.
{¶ 1} Terry South appeals from his conviction and sentence on one count of domestic violence in violation of
{¶ 2} In his sole assignment of error, South challenges the legal sufficiency of the evidence to sustain his conviction.
{¶ 3} The present appeal stems from a dispute between South and his wife over a two-day period in September 2017. At South‘s bench trial, Champaign County Sheriff‘s Department Sergeant Matt Larmee testified that he responded to a 911 call reporting a domestic disturbance at South‘s residence in the early evening of September 26, 2017. Upon arriving, Larmee met South‘s wife, who reported that her husband had made “some threats” and that she was “sick of” South. (Trial Transcript at 6, 22). South‘s wife and the sergeant also discussed events that had occurred the prior evening. According to Larmee, she reported that South had “shoved” her the prior evening during a dispute about a beer cooler in a pick-up truck. (Id. at 30-35). Larmee testified that other law-enforcement officers had responded to a call about the alleged shoving incident the prior day. (Id. at 36-38). South already had left the house when they arrived, and no arrest was made and no warrant was issued on that occasion. (Id.). After speaking to the couple on September 26, 2017, however, Larmee arrested South, who was intoxicated. (Id. at 20).
{¶ 4} The only other prosecution witness at trial was South‘s wife. She testified that she called 911 on the evening of September 26, 2017 to report a dispute with her husband. South had returned home drunk. While she was on the phone, South “came at [her] like he was going to knock the phone out of [her] hand.” (Id. at 41). While her vehicle was parked in the driving area of their yard, South threatened to crash his truck into her
{¶ 5} South‘s wife also described to Larmee the incident the previous night involving the beer cooler. (Id.). South‘s wife testified that he had “pushed” or “shoved” her during that incident to keep her from getting back into the truck but that she did not fall to the ground. (Id. at 42-48). She admitted telling the 911 operator the previous evening that South had pushed her several times. She testified, however, that she had been angry and had exaggerated. (Id. at 51). When asked about the possibility that she was changing her testimony, South‘s wife denied that South had contacted her or tried to intimidate her to change her testimony. (Id. at 53).
{¶ 6} Following his wife‘s testimony, South made a
{¶ 7} After the trial court‘s ruling, South recalled his wife as a defense witness. Defense counsel asked her whether she believed South would attempt to harm her when she called 911 on September 26, 2017. (Id. at 56). She responded, “I didn‘t know. I didn‘t know what he would do.” (Id.). On cross examination, she acknowledged that the dispute was serious enough for her to get law enforcement involved. (Id.).
{¶ 8} Based on the evidence presented, the trial court found South guilty of domestic violence under
{¶ 9} As set forth above, South‘s assignment of error challenges the legal sufficiency of the evidence to sustain his conviction. Specifically, he contends the State presented insufficient evidence to establish that his wife believed he would cause her “imminent physical harm.” South claims his wife testified that she thought his threat about being “done” meant that their marriage was over. South refers to his wife‘s testimony that he did not intimidate her as evidence that she did not believe she was in danger. Appellant‘s Brief at 5. However the “intimidation” testimony was clearly related to whether he had contacted her to intimidate her to change her testimony and has nothing to do with her state of mind at the time of the threatening events. (T. at 53.) Finally, he cites her
{¶ 10} When a defendant challenges the sufficiency of the evidence, he is arguing that the State presented inadequate evidence on an element of the offense to sustain the verdict as a matter of law. State v. Hawn, 138 Ohio App.3d 449, 471, 741 N.E.2d 594 (2d Dist.2000). “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. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶ 11} With the foregoing standards in mind, we conclude that South‘s conviction was supported by legally sufficient evidence. In relevant part, the complaint against South alleged that he “did knowingly cause [his wife] to believe that she would be under imminent physical harm by making a threat of force to her, to wit: Terry E. South did state to [his wife] that if she call (sic) the law, she ‘would not leave the house alive.’ ” (Doc. #2).
{¶ 12} As set forth above, South‘s wife testified at trial that he told her that the next time she called the law she was “done.” He also told her after her 911 call on September 26, 2017 that if she had called the law, she “might probably may not make it out of here alive.” The issue is whether, construing the evidence most favorably to the State, a rational trier of fact could find that South‘s threats or actions caused her to believe he would cause her imminent physical harm.
{¶ 14} Here the record reflects that South had shoved or pushed his wife during a dispute about a beer cooler the prior evening. She then called 911 on September 26, 2017, to report another dispute. During that call, South made a comment about his wife being “done.” She responded by saying, “I‘m done? Oh, okay. I‘m done then.” She testified that she did not know what South meant. As noted above, however, South also essentially threatened to kill her when he subsequently stated, “[I]f you called the law, I mean you might probably may not make it out of here alive.” When Sergeant Larmee arrived shortly thereafter, South‘s wife reported that he was going to hit her car with another vehicle. (Tr. at 41-42). The body camera worn by Sergeant Larmee at the scene on September 26, 2017 recorded South‘s wife describing how she watched South actually drive his pick-up truck toward her unoccupied vehicle in the driveway as if he were going to hit it. On the recording, she pointed to where she was standing in the yard and said she was afraid “he was going to hit me.” Likewise, during her 911 call prior to Larmee‘s arrival, South‘s wife told the operator that South had been threatening to hit her car with his and that she was “scared of him.” When asked “[d]o you believe that Mr. South would attempt to harm you?” she replied “I didn‘t know. I didn‘t know what he would do.” (Tr. at 56). In response, at trial the State asked her whether “it was serious enough that you felt
{¶ 15} South argues that the evidence in this case is even less sufficient than in the Fisher case. In Fisher, Mr. Fisher went to his residence to get some work clothes. He had no intention of interacting with Ms. Fisher and, when she was not in a downstairs computer room where she had been staying, he surmised she was staying with her boyfriend. Unbeknownst to him, Ms. Fisher was instead asleep in a bedroom of her estranged husband‘s house where she had jammed the door with a fork and had placed furniture in front of the door. He “ultimately opened the door with a reasonable amount of force needed to gain entry and collect the clothing items.” Id. at ¶ 18. The furniture and items on it were knocked off and broken. Words were exchanged but “[i]t [was] unclear who began the verbal altercation or exactly what was said.” Id. at ¶ 5. Fisher retrieved his clothes and left. The Fisher decision does not contain evidence of intoxication, which Fisher denied in his testimony.
{¶ 16} Regarding evidence of imminent harm, Ms. Fisher testified “she did not know whether Mr. Fisher was going to hurt her.” (Emphasis sic.) Id. at ¶ 18. When asked if that “was possible?” she replied “[a]bsolutely.” Fisher found this evidence was insufficient to prove a fourth degree domestic violence charge and reversed his conviction.
{¶ 17} There are at least five critical distinctions between this case and the events described in Fisher. First, South made an overt verbal threat on his wife‘s life. The Fisher decision describes no threat. Second, South raced his car down the drive toward his wife‘s car but veered off, resulting in her saying that she feared he would hit her. Fisher contains no evidence of an overt act directed at his spouse. Third, South verbally challenged his
{¶ 18} On these facts, we do not believe that South‘s wife‘s statements that she did not know what he would do, or by what manner or means he would harm or even kill her, demonstrates insufficiency of the evidence. Based on the victim‘s testimony coupled with South‘s statements and physical actions, viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.
{¶ 19} Having reviewed the record, we find legally sufficient evidence that South‘s wife believed he would cause her imminent physical harm on September 26, 2017. South‘s assignment of error is overruled and the trial court‘s judgment is affirmed.
FROELICH, J. and TUCKER, J., concur.
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