State v. Bates , 2022 Ohio 3150 ( 2022 )

[Cite as State v. Bates, 2022-Ohio-3150.]
COURT OF APPEALS
KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Earle E. Wise, Jr., P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
DENNIS BATES : Case No. 22CA00001
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No.21CR02-0026
JUDGMENT: Affirmed
DATE OF JUDGMENT: September 8, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHARLES T. MCCONVILLE JON KLEIN
NICOLE E. DERR 101 Heather Lane
117 E. High Street Powell, OH 43065
Suite 234
Mount Vernon, OH 43050
Knox County, Case No. 22CA00001 2
Wise, Earle, P.J.
{¶ 1} Defendant-Appellant Dennis Bates appeals the December 22, 2021
judgment of conviction and sentence of the Knox County Court of Common Pleas.
Plaintiff-Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} Richard McElvain owns a property in Mount Vernon, Ohio which he rented
to appellant herein. Appellant ran his business, Pro Fitness USA out of McElvain's
building.
{¶ 3} In early December, 2020, after appellant failed to pay his rent, McElvain
contacted Attorney Kim Rose of Critchfield, Critchfield, and Johnson (herein Critchfield)
to begin eviction proceedings. McElvain forwarded two messages to Rose that he had
received from appellant after he attempted to collect rent. The first said "your move." The
second was a response from McElvain asking what that meant to which appellant replied
"what will your legacy be?"
{¶ 4} Rose had his associate, Attorney Zachary Dimarco draft a complaint against
appellant for forcible entry and detention. Dimarco filed the complaint in the Mount Vernon
Municipal Court on December 28, 2020.
{¶ 5} On December 30, 2020 appellant appeared at the Critchfield office on Gay
Street in Mount Vernon. Brittany Bowman, a legal assistant with the firm was at the front
desk. Appellant approached and asked to speak with Dimarco. Bowman knew Dimarco
had no appointments scheduled and did not recognize appellant's name. Dimarco was
on the phone and Bowman advised appellant she did not know how long he would be.
Knox County, Case No. 22CA00001 3
She requested he take a seat and sent Dimarco an email alerting him to appellant's
presence. Appellant then became impatient when he was not immediately seen.
{¶ 6} Attorney Kim Rose eventually came out to talk to appellant. Rose, a military
veteran, noticed a strange wired device hanging around appellant's neck and believed it
was some sort of improvised explosive device. Appellant was also wearing a mask with
mob or mobster on it. Based on these observations Rose feared things would turn violent
and feared for the safety of himself and Bowman. Rose heard appellant say something
about war as he approached with his arms raised, a letter in one hand, as if to strike Rose.
Appellant's voice was raised and aggressive as he told Rose he was recording their
conversation. Rose hoped the device around appellant's neck was a recording device,
but put himself in between appellant and Bowman to protect Bowman. When Rose asked
appellant if he was threatening him appellant's demeanor instantly changed. He began to
tremble. Rose took the opportunity to tell appellant to leave.
{¶ 7} Rose took the letter from appellant intended for Dimarco and appellant left.
The letter stated appellant had applied for covid relief funds but had not yet received any
funds. He stated when he did, he would sent funds to Dimarco. The letter also contained
non-sensical statements such as "I run the mob."
{¶ 8} Also on December 30, 2021, Rose was made aware of a public post
appellant made on Facebook. The post consisted of a still frame of Rose from the video
and the caption "Got you bitch." Appellant tagged his location for the post as "The
Columbus Bar Association." Because Rose perceived appellant as a threat to himself
and his coworkers, he began routinely checking appellant's Facebook page.
Knox County, Case No. 22CA00001 4
{¶ 9} On December 31, 2020, Rose sent a letter to appellant's business advising
him he was not to return to the Critchfield office and if he did, police would be involved.
Appellant responded by sending every attorney in the Critchfield office an email with a
link to his Facebook page and the video he took of Rose. The email subject was "false
accuser." Part of the email read "Let his days be few and let another take his office. Let
his children be fatherless and his wife a widow."
{¶ 10} Even after appellant received Rose's letter, he continued to contact Rose
via email. Rose directed appellant to address any concerns he had to his counsel and
again asked him to refrain from contacting the firm or their client.
{¶ 11} On January 8, 2021 appellant appeared on the sidewalk in front of the
Critchfield office with a sign that read "corrupt attorneys represent pedophiles." Appellant
then publicly posted a picture of himself with the sign on Facebook with the caption "Tick
Tock." Rose took that to be a reference to a bomb.
{¶ 12} On January 14, 2021, appellant made another public Facebook post which
read "What is about to happen will shock the world, boom, boom, boom." Again Rose
perceived the post as a threat of violence.
{¶ 13} Because Rose perceived appellant as a threat to the firm, he implemented
additional security measures. He believed appellant intended to cause him or his
associates physical harm.
{¶ 14} As a result of these events, on February 8, 2021, the Knox County Grand
Jury returned an indictment charging appellant with one count of retaliation in violation of
R.C. 2921.05(A), a felony of the third degree.
Knox County, Case No. 22CA00001 5
{¶ 15} Appellant pled not guilty to the charge and opted to proceed to a jury trail
which began November 16, 2021.
{¶ 16} The state called four witnesses and elicited the above outlined facts.
{¶ 17} Appellant testified on his own behalf. He stated he went to the Critchfield
office to give Dimarco a letter to give his landlord to let him know he was going to bring
his rent current. He stated the device around his neck was his iPhone which he used to
record his conversation with Rose. He testified he told Rose "You tell Dimarco I have
strength in counsel" and that he was "Ready for war." He explained what he meant by
this was that he was ready for a legal battle.
{¶ 18} As for the text communication between himself and his landlord, appellant
testified "Your move" meant he did not have his rent payment. Appellant explained "what
will your legacy be" was in reference to alleged conversations between himself and his
landlord to "donate a portion of the building" to appellant's ministry. Appellant testified that
when his landlord was not open to this proposal he sent a text reading "You serve God
with your lips but your heart is far from Him."
{¶ 19} Appellant next explained he posted the still frame of Rose captioned "got
you bitch" to "show others how corrupt Kim Rose is." He further stated he tagged himself
at the Columbus Bar Association when he was not actually there because "a guy like that
should be reported to the bar." In the same vein, he stated he sent a copy of the video of
Rose to everyone at Critchfield "to let them see exactly the kind of corrupt ways that he
was trying to corner me into, you know, with this video." Appellant testified the portion of
the email suggesting Rose's children should be fatherless and his wife a widow was a
Knox County, Case No. 22CA00001 6
"prayer against your enemies, people who accuse you falsely." He told the jury this
represented a request for God to take those actions.
{¶ 20} Appellant admitted he ignored the letter from Rose asking that he refrain
from contacting him by sending one or two emails after he received the letter. He justified
this by explaining he was not represented by counsel at the time.
{¶ 21} Appellant testified his demonstration in front of the Critchfield office with the
sign reading "corrupt attorneys protect pedophiles" had nothing to do with the eviction.
Instead, he explained it was in reference to the fact that Rose is the president of the Ariel
Foundation Conservancy which is a local park conservancy. Appellant explained "there's
symbols in that park that have me concerned about pedophilia." Appellant stated he
publicly posted a photo of himself with the sign on Facebook with the caption "Tick Tock"
not in reference to a bomb, but rather in reference to it being a "matter of time before
people that are involved in pedophilia get caught." He further explained that he got the
phrase "Tick Tock" online as it is used in videos he watches that involve investigating and
uncovering pedophilia, child trafficking, and satanic human sacrifice.
{¶ 22} As for his public Facebook post declaring "What is about to happen will
shock the world, boom, boom, boom," appellant again testified this was not in reference
to a bomb, but rather " truth that's coming out, truth bombs." Again, appellant stated this
statement had something to do with pedophilia and human trafficking.
{¶ 23} After hearing all the evidence and deliberating, the jury found appellant
guilty as charged. He was subsequently sentenced to two years incarceration.
{¶ 24} Appellant timely filed an appeal and the matter is now before this court for
consideration. He raises two assignments of error as follow:
Knox County, Case No. 22CA00001 7
I
{¶ 25} "THE EVIDENCE IS INSUFFICIENT TO SUPPORT THE APPELLANTS
RETALIATION CONVICTION."
II
{¶ 26} "APPELLANT'S CONVICTION FOR RETALIATION WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE."
I, II
{¶ 27} In his first and second assignments of error, appellant makes the same
argument.1 Specifically, appellant argues his conviction for retaliation is not supported by
sufficient evidence because the retaliation statute applies only to conduct which occurs
after a judgment has been rendered. We disagree.
Sufficiency and Manifest Weight
{¶ 28} On review for sufficiency, a reviewing court is to examine the evidence at
trial to determine whether such evidence, if believed, would support a conviction. State v.
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). "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."
Jenks at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99
1
Although appellant states his conviction is against the manifest weight of the evidence, he makes identical
arguments in his first and second assignments of error, failing to make any manifest weight argument in his second
assignment of error.
Knox County, Case No. 22CA00001 8
S.Ct. 2781, 61 L.Ed.2d 560 (1979). On review for manifest weight, a reviewing court is to
examine the entire record, weigh the evidence and all reasonable inferences, consider
the credibility of witnesses and determine "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." State v. Martin, 20 Ohio App.3d
172, 175, 485 N.E.2d 717 (1st Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d
380, 678 N.E.2d 541 (1997). The granting of a new trial "should be exercised only in the
exceptional case in which the evidence weighs heavily against the conviction." Martin at
175.
Retaliation
{¶ 29} Appellant was charged with retaliation pursuant to R.C. 2921.05(A). That
section states in relevant part "No person, purposely and by force or by unlawful threat of
harm to any person or property, shall retaliate against * * * an attorney or witness who
was involved in a civil or criminal action or proceeding because the * * * attorney * * *
discharged the duties of the * * *attorney * * *.
Appellant's Argument
{¶ 30} Appellant argues that because nearly all of the conduct alleged took place
before the eviction was complete, the proper charge was intimidation, not retaliation.
Based on this premise, he argues the state failed to produce sufficient evidence to support
a conviction for retaliation. We disagree.
{¶ 31} We first note that on multiple occasions this court has affirmed convictions
for retaliation in cases where the offense was committed before the conclusion of any
underlying action. See State v. Nash, 5th Dist. No.1999CA00295, 2000 WL 502675 (Apr.
Knox County, Case No. 22CA00001 9
3, 2000) *3; State v. Goodwin, 5th Dist. No.2003 CA 0074, 2004-Ohio-2482, ¶ 26-28;
State v. Matthews, 5th Dist. Fairfield No. 12-CA-35, 2013-Ohio-2183, ¶ 9-15.
{¶ 32} Next, in support of his argument, appellant cites State v. Johnson, 4th Dist.
Scioto No. 07CA3158, 2008-Ohio-1369. In that matter, the Fourth District found any
action before a judicial decision is intimidation, while any action after a judicial decision is
retaliation. The Johnson court based this conclusion on the past-tense language in R.C.
2921.05, specifically the use of "was involved." Id. at ¶ 18.
{¶ 33} The reasoning in Johnson, however, has been rejected by the Eleventh
District in State v. Ott, 11th Dist. No. 2007-P-0093, 2008-Ohio-4049. The Ott court
addressed the past-tense language at ¶ 51:
We believe the legislature's use of the word "was" applies to the
public servant's, party official's, attorney's, or witness' involvement in
the civil or criminal action. We do not believe, as the Fourth District
has held, that it applies to the entire underlying proceeding. See
State v. Johnson, 2008-Ohio-1369, at ¶ 18. Moreover, the intent of
the legislature can be discerned from the remaining language, which
provides that the designated individual in the statute "discharged the
duties of the public servant, party official, attorney, or witness." The
use of the word "discharged" suggests that the legislature intended
the statute to apply following the requisite individual's discharge of
some or all of that person's duties.
Knox County, Case No. 22CA00001 10
{¶ 34} The Ott court went on to find:
We believe the better approach is to look at the underlying nature of
the offender's conduct. If the evidence shows that the offender
attempted to influence, intimidate, or hinder a designated individual
in the discharge of that person's duty, then the offender is guilty of
intimidation in violation of R.C. 2921.03. If, however, the evidence
demonstrates the offender's actions are in response to the
designated individual already discharging some or all of his or her
duties, then the offender is guilty of retaliation in violation of R.C.
2921.05.
{¶ 35} We agree with the findings of the Ott court. Applied to the instant matter,
the evidence demonstrated appellant acted in response to an eviction proceeding filed
against him by Dimarco and handled by Rose. Dimarco and Rose, by virtue of filing the
eviction, had discharged some of their duties to their client when appellant engaged in his
disorderly and intimidating behavior. We find this evidence sufficient to support
appellant's conviction for retaliation.
{¶ 36} For the forgoing reasons, appellant's first and second assignments of error
are overruled.
Knox County, Case No. 22CA00001 11
{¶ 37} The judgment of the Knox County Court of Common Pleas is affirmed.
By Wise, Earle, P.J.
Wise, John, J. and
Baldwin, J. concur.
EEW/rw