State v. TiptonState v. Tipton
Rendered on the 10th day of July, 2020.
AMY B. MUSTO, Atty. Reg. No. 0071514, City of Dayton Prosecutor‘s Office, 335 West Third Street, Room 372, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee
JAMES S. SWEENEY, Atty. Reg. No. 0086402, 285 South Liberty Street, Powell, Ohio 43065 Attorney for Defendant-Appellant
Factual and Procedural Background
{¶ 2} On May 13, 2019, Tipton was charged with one count of aggravated menacing, in violation of
{¶ 3} Hester Tipton, who goes by her middle name, Renee, is Fred Tipton‘s sister. At the time of the events in this case, she had custody of Tipton‘s 13-year-old daughter. Tipton had no visitation rights and apparently had not seen his daughter since Renee was given custody three years earlier. Since then, Renee and Tipton had not had a good relationship, and Renee had blocked Tipton‘s phone number.
{¶ 4} On May 9, 2019, Renee and her long-time fiancé, Marvin McDermott, were having dinner at a Dayton restaurant when McDermott received an angry phone call from Tipton. He was angry because his daughter was in the hospital and Renee had not called to tell him. Tipton was cursing and talking so loudly that Renee could hear him. McDermott went outside, and Renee followed. Outside the restaurant, McDermott turned on his phone‘s speakerphone. He did not tell Tipton that he had turned it on or that others could hear their conversation. Renee and McDermott listened as Tipton threatened to send someone to “beat up” Renee and threatened numerous times to kill her. Renee testified that Tipton also threatened to have someone “shoot up” her house, though McDermott
{¶ 5} Tipton testified in his own defense. He said that he did not know that McDermott had turned on speakerphone and did not know that anyone else was around to hear the conversation. Tipton said that he did not know that Renee overheard the phone call.
{¶ 6} On October 10, 2019, the municipal court entered a judgment finding Tipton guilty of aggravated menacing. On October 29, he was sentenced to 180 days in jail, all of which was suspended. Tipton was also ordered to complete an anger management program, a psychological evaluation, and to pay court costs of $120.
{¶ 7} Tipton appeals.
Analysis
{¶ 8} Tipton‘s sole assignment of error alleges that his conviction for aggravated menacing was against the manifest weight of the evidence.
{¶ 9} When reviewing a weight-of-the-evidence challenge, an appellate court reviews 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 finder 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. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 10} The aggravated menacing statute pertinently states that “[n]o person shall knowingly cause another to believe that the offender will cause serious physical harm to the person * * *.”
{¶ 11} Tipton argues that he did not know his threats were being conveyed or would be conveyed to Renee. The plain language of
{¶ 12} Tipton‘s threats were made knowingly, that is, he was aware that his conduct would probably cause a certain result, namely, Renee‘s belief that he would seriously harm her. Tipton was aware that McDermott was Renee‘s long-time fiancé, so it could reasonably be inferred that Tipton knew or reasonably should have known that
{¶ 13} Tipton‘s argument relies on two apparent contradictions between McDermott‘s and Renee‘s testimony. The first concerns whether McDermott told Tipton that Renee could hear the conversation. Renee testified that, during the call, Tipton could hear her and that McDermott told him that she was within earshot. But McDermott testified that he never told Tipton that anyone else could hear the conversation. The second alleged contradiction concerns who called the police. Renee testified that she called the police; McDermott testified that neither he nor Renee called the police. We think that there were ways to reconcile this testimony and that neither of the apparent contradictions was significant; moreover, contradictions in evidence are matters for the trial court to resolve. Ultimately, the trial court could also have reasonably concluded that Tipton should have expected McDermott to tell Renee of his threats. The evidence supports the conclusion that Tipton should have expected such communication.
{¶ 14} This is not an ” ‘exceptional case in which the evidence weighs heavily against the conviction.’ ” Thompkins, 78 Ohio St.3d at 387, quoting Martin, 20 Ohio App.3d at 175. We conclude that the municipal court neither lost its way nor created a miscarriage of justice in convicting Tipton of aggravated menacing.
Conclusion
{¶ 15} The sole assignment of error is overruled. The municipal court‘s judgment is affirmed.
FROELICH, J. and WELBAUM, J., concur.
Amy B. Musto
James S. Sweeney
Hon. Mia Wortham Spells