2004 Ohio 6458 | Ohio Ct. App. | 2004
{¶ 2} On appeal, appellant sets forth the following three assignments of error:
{¶ 3} "First assignment of error
{¶ 4} "Defendant-Appellant's conviction is contrary to the weight of the evidence, and is insufficient to support a convict. Therefore, the Defendant-Appellant was denied his right to due process under the Ohio and United States Constitutions.
{¶ 5} "Second assignment of error
{¶ 6} "Defendant-Appellant's sentence should be reversed as the trial court failed to comply with the mandates of Revised Code §
{¶ 7} "Third assignment of error
{¶ 8} "The trial court erred when it ordered the defendant-appellant to pay unspecified court costs."
{¶ 9} The undisputed facts that are relevant to the issues raised on appeal are as follows. In September 2002, appellant was indicted by the Lucas County Grand Jury on one count of grand theft, a fourth degree felony ("case no. CR-02-2818"). The charges arose after appellant had an angry confrontation with his former girlfriend, Shirley Keubler, on September 5, 2002, during which appellant took Keubler's car keys and drove away.
{¶ 10} Appellant, through his court-appointed counsel, entered a not guilty plea in case no. CR-02-2818 on September 24, 2002. On October 17, 2002, a pretrial hearing was held, which appellant and Keubler attended. As appellant was being escorted from the courtroom, he said something to Keubler which was overheard by the court bailiff, Christina Kilis. Kilis brought appellant's statement to the court's attention.
{¶ 11} As a result of appellant's reported behavior in court on October 17, the Lucas County Grand Jury re-indicted appellant on charges of robbery, in violation of R.C.
{¶ 12} A jury trial was held in case no. CR-02-3088 on November 7, 2002. Testimony was presented at trial by Shirley Keubler and Christina Kilis. Keubler testified that she began dating appellant in June 2002; however, she broke up with appellant in August 2002, after he became violent and struck her on several occasions. She further testified that on September 5, 2002, appellant returned to her home and threatened to hurt her, after which he stole her purse and car keys, and drove away in her 2001 Pontiac Grand Prix. Keubler stated that, when the Grand Prix was later recovered, it had sustained $1,500 in damage, and that a factory-installed On Star tracking device had been disabled when it was ripped out of the vehicle.
{¶ 13} Keubler testified that she was seated in the visitor's section of the courtroom during the pretrial hearing on October 17, 2002, with her mother, when she saw appellant mouth some words and stare at her with a hateful "glare." On cross-examination, Keubler testified that appellant was several rows away from her in the courtroom at the time, and that she could not hear what he was saying because of the distance between them.
{¶ 14} Bailiff Kilis testified at trial that, as appellant left the courtroom on October 17, she saw him turn toward Keubler and say: "I will see you later." Kilis further testified that appellant emphasized the word "you" and that his "tone of voice suggested [his statement] was a threat" to Keubler.
{¶ 15} At the close of Kilis' testimony the prosecution rested. No witnesses were presented on appellant's behalf. That same day, the jury returned verdicts of not guilty as to the charges of robbery and menacing by stalking, and guilty as to the charge of intimidation of a witness.1 After the verdicts were read, the state and appellant waived any right to a presentence report, and the matter proceeded to immediate sentencing.
{¶ 16} After giving both appellant and his attorney an opportunity to address the court, the trial court sentenced appellant to a two-year prison term. On November 12, 2002, the trial court filed a judgment entry in which, in addition to the two-year prison sentence, the trial court ordered appellant to "pay costs of prosecution." A timely notice of appeal was filed on December 9, 2002.
{¶ 17} Appellant asserts in his first assignment of error that his conviction was against the manifest weight of the evidence. Appellant further asserts that the record contains insufficient evidence to support the jury's guilty verdict as a matter of law. Specifically, appellant argues that the words "I will see you later," standing alone, do not constitute an "unlawful threat of harm" as required by R.C.
{¶ 18} "Sufficiency" of the evidence is a question of law on whether the evidence is legally adequate to support a jury verdict as to all elements of the crime. State v. Thompkins
(1997),
{¶ 19} In contrast, a manifest weight challenge questions whether the state has also met its burden of persuasion.Thompkins, at 387. In making this determination the court of appeals sits as a "thirteenth juror" and, after "reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered."Thompkins, supra, at 387, citing State v. Martin, (1983),
{¶ 20} Appellant was convicted of one count of intimidation of a crime victim or witness, in violation of R.C.
{¶ 21} "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."
{¶ 22} As set forth above, Keubler testified at trial that she did not actually hear what appellant said in the courtroom, although she was aware that he was glaring at her. Pursuant to R.C.
{¶ 23} The term "unlawful" is not statutorily defined. Therefore, it must be given its "common, everyday meaning."State v. Myers, 3rd Dist. No. 7-99-05, 2002-Ohio-1677, citingState v. Dorso (1983),
{¶ 24} In this case, appellant's words, "I will see you later," were unaccompanied by any action other than appellant "glaring" at Keubler. However, Kilis, who overheard what appellant said, testified that she believed the words "I will see you later," with emphasis on the word "you," posed a threat of harm to Keubler, even though those words were never communicated directly to Keubler.
{¶ 25} This court has considered the entire record of proceedings that was before the trial court and, upon consideration thereof and the law, and after viewing the evidence presented in a light most favorable to the prosecution, finds that, given the history of appellant's relationship with Keubler as set forth above, the words "I will see you later," were sufficient to constitute an "unlawful threat of harm." Accordingly, the evidence presented at trial was legally sufficient to support a conviction pursuant to R.C.
{¶ 26} Appellant asserts in his second assignment of error that the prison sentence imposed by the trial court is contrary to law because the trial court failed to comply with the mandatory sentencing criteria set forth in R.C.
{¶ 27} Appellant was convicted of one count of intimidating a crime victim or witness in violation of R.C.
{¶ 28} R.C.
{¶ 29} "[I]n determining whether to impose a prison term as a sanction for a felony of the third degree * * * the sentencing court shall comply with the purposes and principles of sentencing under section
{¶ 30} The overriding purposes of the felony sentencing statutes are to "protect the public from future crime by the offender and others and to punish the offender." R.C.
{¶ 31} Pursuant to R.C.
{¶ 32} "(1) The offender was serving a prison term at the time of the offense, or the offender previously had served a prison term.
{¶ 33} "(2) The court finds on the record that the shortest prison term will demean the seriousness of the offender's conduct or will not adequately protect the public from future crime by the offender or others."
{¶ 34} The record in this case contains a report of appellant's prior criminal history, which shows that appellant was imprisoned for robbery in January 1985. Accordingly, the trial court was not required to make an additional finding pursuant to R.C.
{¶ 35} As for the remaining statutory factors, pursuant to R.C.
{¶ 36} Except in cases where a prison term is mandated by statute, the implementation of the principles set forth in R.C.
{¶ 37} In this case, the record shows that, in addition to appellant's prior imprisonment for robbery, appellant's criminal history includes a conviction for possession of illegal drugs in October 2001. The record further shows that, before sentencing, appellant made a statement to the court in which he expressed regret at the loss of his "freedom" due to a misunderstanding of the comments he made in court. Defense counsel then stated that appellant is a "poor judge of relationships" who "picks the wrong people, and the wrong time and, perhaps, does the wrong things." Thereafter, the trial court stated that it had considered the principles and purposes of sentencing set forth in R.C.
{¶ 38} On November 12, 2002, a judgment entry was filed in which the court stated that, in addition to considering the principles and purposes of sentencing outlined in R.C.
{¶ 39} Upon consideration of the foregoing, we cannot find that the trial court abused its discretion in this case. The facts demonstrate that the trial court considered the entire record, which included evidence of appellant's prior convictions and imprisonment, as well as the principles and purposes of sentencing and the factors relative to the seriousness of appellant's conduct and the likelihood of recidivism, before sentencing appellant. Those factors, coupled with appellant's admitted lack of judgment and poor self-control, support the trial court's determination that appellant should be sentenced to serve a two-year prison term. Appellant's second assignment of error is not well-taken.
{¶ 40} Appellant asserts in his third assignment of error that the trial court erred by ordering him to pay the costs of prosecution.
{¶ 41} R.C.
{¶ 42} "(A)(1) In all criminal cases, * * * the judge or magistrate shall include in the sentence the costs of prosecution and render a judgment against the defendant for such costs. * * *"
{¶ 43} In support of his assignment of error, appellant relies on State v. Ramirez (2003),
{¶ 44} In past instances, this court has declined to follow the reasoning expressed in Ramirez. In so doing we, along with other Ohio courts of appeal, have reasoned that "R.C.
{¶ 45} In this case, we once again decline to follow the reasoning expressed in Ramirez and instead find, in accordance with our decisions in Hartsell, supra, and White, supra, that the trial court did not err by ordering appellant to pay the costs of prosecution as authorized by law. Appellant's third assignment of error is not well-taken.
{¶ 46} The judgment of the Lucas County Court of Common Pleas is hereby affirmed. Pursuant to App.R. 24, court costs of these proceedings are assessed to appellant.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4, amended 1/1/98.
Handwork, P.J., Knepper, J., Singer, J., Concur.
