State v. Smith , 2019 Ohio 3257 ( 2019 )

[Cite as State v. Smith, 2019-Ohio-3257.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-180499
TRIAL NO. 18CRB-60
Plaintiff-Appellee, :
O P I N I O N.
vs. :
TYRONE SMITH, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: August 14, 2019
Paula Boggs Muething, City Solicitor, Natalia Harris, City Prosecutor, and Jennifer
Bishop, Assistant City Prosecutor, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and David Hoffman, Assistant
Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} In this aggravated menancing case, a critical witness failed to show up for
trial, so the state opted to present her “testimony” via the expediency of a police body-
camera interview. This interview occurred well after the incident at hand and can only be
characterized as “testimonial” in our Confrontation Clause lexicon. The court accordingly
erred, both on constitutional and hearsay grounds, in admitting this evidence, and the error
cannot be brushed aside as harmless because the court specifically relied on this interview
to convict the defendant. We accordingly reverse the decision below and remand for a new
trial.
I.
{¶2} On New Year’s Day 2018, William Jeffreys and his girlfriend, Nadia Faulk,
spent the day together running errands and planned to attend a concert later that night. At
the same time, defendant-appellant Tyrone Smith (Ms. Faulk’s former beau), arrived at Ms.
Faulk’s home with his own notion that the two would be spending time together that
evening. When Mr. Smith arrived at Ms. Faulk’s home, however, she was not there. While
waiting, Mr. Smith’s friend, Bryant Wilson, arrived at the house to join him, and shortly
thereafter Mr. Jeffreys showed up to drop off Ms. Faulk.
{¶3} According to Mr. Jeffreys, upon arriving at her house, he pulled into the
driveway next door and another car pulled up behind him, blocking his car. With the car
blocked, Mr. Smith approached Mr. Jeffreys’s car window and began threatening to kill Mr.
Jeffreys with a gun. At some point, Ms. Faulk exited from the vehicle, imploring Mr. Smith
to stop. Eventually, the vehicle blocking Mr. Jeffreys’s car moved, and he left the scene.
{¶4} Upon returning home, Mr. Jeffreys testified that he called the police, and
officers responded at 1:34 a.m., arriving to his house a few minutes later. After speaking
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OHIO FIRST DISTRICT COURT OF APPEALS
with Mr. Jeffreys and gathering details about the incident, the officers and Mr. Jeffreys
proceeded to Ms. Faulk’s residence, approximately a mile away. Upon arriving at Ms.
Faulk’s house, the two officers approached the house and, once inside, began talking to Mr.
Smith (who, notwithstanding the earlier altercation, succeeded with his plan to hang out
with Ms. Faulk). Realizing that Mr. Smith was the alleged perpetrator, the police
handcuffed him, and Mr. Jeffreys confirmed his identity as the pepetrator. The police then
attempted to speak more with Mr. Smith, but he proved unwilling to cooperate, and thus the
officers turned their attention to Ms. Faulk. Though she initially hestitated in responding,
upon prodding and a directive to “tell the truth,” Ms. Faulk stated that “I can’t really even
explain what really happened,” but then conceded that “it happened.” One of the officers
then clarified: “[Mr. Smith] pulled a gun on you?” and Ms. Faulk confimed. The police then
asked her about the location of the gun, and she responded that Mr. Smith’s friend, Mr.
Wilson, took the gun away from the premises. Ms. Faulk also asked rhetorically: “I swear
why would I be lying?” and stated that she had tried to go to a neighbor’s house to call the
police. Ms. Faulk also reminded Mr. Smith that she had told him that she would call the
police on him because it “was not cool.” The police then formally placed Mr. Smith under
arrest.
{¶5} At a bench trial, Ms. Faulk never appeared to testify, despite being
subpoenaed. Because she was not present at trial to testify, and over the objections of
defense counsel, the judge admitted into evidence the police body-camera footage of the
officers’ interview with her. The court deemed the video statements admissible in light of
the “ongoing emotional situation that occurred and that qualifie[d] as an exception to the
hearsay rule.”
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶6} The admission of Ms. Faulk’s corroborating testimony would prove decisive at
trial, as credibility issues plagued Mr. Jeffreys’s testimony. At trial, Mr. Jeffreys maintained
that the incident took place sometime between 5:00 p.m. and 7:00 p.m., when there was
still daylight. Describing the interaction between himself and Mr. Smith, Mr. Jeffreys
maintained: “I believe it was around 6:00, 6:30 or so, 5:30 - - between 5:00 and 7:00 in the
evening, I know that,” and “day was starting to get dark. But it wasn’t all the way dark * * * .
[i]t was still enough daylight to see.” On cross-examination, he explained: “It was still light
out, yes. * * * Just starting to get dark. I don’t know what time it was to be sure, but I know
it happened.” But Mr. Jeffreys also testified that he drove directly home and called the
police immediately, and the police received the dispatch at approximately 1:30 a.m. on
January 2 and arrived at his home a few minutes later. Furthermore, Mr. Wilson and Mr.
Smith both maintained that the incident occurred much later in the evening. Mr. Wilson
testified that he arrived at the house to meet Mr. Smith at 11:00 p.m. and that Mr. Jeffreys
and Ms. Faulk arrived approximately 20 minutes later. Similarly, Mr. Smith described Mr.
Jeffreys and Ms. Faulk’s arrival to have occurred around 11:30 or 11:40 p.m. The conflict on
the timeline matters because if it had still been daylight, Mr. Jeffreys’s testimony about
seeing a gun would have been more credible.
{¶7} During closing arguments, defense counsel drew the court’s attention to the
discrepencies in Mr. Jeffreys’s testimony regarding the timeline of events. Defense counsel
implied that he could not keep his facts straight because he was lying to incriminate Mr.
Smith:
[Mr. Jeffreys] knows how the system works; he’s a convicted felon, violent
felon. * * * And so he’s got this story he is going to tell the police. You have
two people that are interested in the same person; same woman, two men. So
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OHIO FIRST DISTRICT COURT OF APPEALS
he’s going to make sure * * * Mr. Smith gets locked up. So he says hey, he
pulled a gun on me.
***
But he can’t keep his facts straight because he said it happened between five
and six o’clock. It’s still light. How can there be such a discrepancy?
{¶8} The court took notice of this “new wrinkle” and ordered transcripts for
review. When the court reconvened to render its verdict, the court informed defense
counsel that, as to the discrepencies in Mr. Jeffreys’s testimony: “Well I have to couple that
with the video that we saw. * * * And in that video was one Nadia Faulk correct? * * * And
she had some things to say in that video, and that causes me to find your client guilty.” The
court then found Mr. Smith guilty of the aggravated menacing charge.
{¶9} Mr. Smith now appeals and asserts two challenges to his conviction. Initially,
he posits that the admission of Ms. Faulk’s statements in the body-camera footage violated
both the rule against hearsay and the Confrontation Clause of the Sixth Amendment to the
United States Constitution. He also challenges the weight and sufficiency of the evidence
supporting his conviction. We begin our analysis with the first assignment of error
challenging the admission of Ms. Faulk’s statements, considering the Confrontation Clause
before turning to hearsay and harmless error.
II.
A.
{¶10} Ms. Faulk’s statements do not withstand scrutiny under the Confrontation
Clause. Although the rule against hearsay and the Confrontation Clause are “generally
designed to protect similar ideals, * * * the Confrontation Clause may bar the admission of
evidence that would otherwise be admissible under an exception to the hearsay rule.”
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OHIO FIRST DISTRICT COURT OF APPEALS
(Citations omitted.) State v. Issa, 93 Ohio St. 3d 49, 60, 752 N.E.2d 904 (2001). Indeed, the
Confrontation Clause’s “ ‘central concern * * * is to ensure the reliability of the evidence
against a criminal defendant by subjecting it to rigorous testing in the context of an
adversary proceeding before the trier of fact.’ ” State v. Madrigal, 87 Ohio St. 3d 378, 384,
721 N.E.2d 52 (2000), quoting Maryland v. Craig, 497 U.S. 836, 845, 110 S. Ct. 3157, 111
L. Ed. 2d 666 (1990). Therefore, the Confrontation Clause prohibits “testimonial statements
of a witness who did not appear at trial unless he was unavailable to testify, and the
defendant had had a prior opportunity for cross-examination.” Crawford v. Washington,
541 U.S. 36, 53-54, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), paragraph (a) of the syllabus.
As a result, we review objections to evidence based on the Confrontation Clause de novo.
State v. Thomas, 2015-Ohio-5247, 54 N.E.3d 732, ¶ 14 (9th Dist.); State v. Burton, 2017-
Ohio-322, 77 N.E.3d 449, ¶ 16 (4th Dist.).
{¶11} The parties do not dispute that Ms. Faulk’s statements were uttered during
the course of a police interrogation, which the United States Supreme Court teaches falls
under the umbrella of “testimonial statements.” Crawford at 68 (testimonial statements at
a minimum include “prior testimony at a preliminary hearing, before a grand jury, or at a
former trial; and * * * police interrogations”). Not all statements made in response to police
questioning, however, are testimonial. Instead, statements made during a police
interrogation become testimonial when “the circumstances objectively indicate that there is
no * * * ongoing emergency, and that the primary purpose of the interrogation is to establish
or prove past events potentially relevant to later prosecution.” Davis v. Washington, 547
U.S. 813, 822, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006). In Michigan v. Bryant, 562 U.S.
344, 374-376, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011), the Supreme Court elaborated on this
point, and explained that the evaluation should consider both the questions by police and
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OHIO FIRST DISTRICT COURT OF APPEALS
the answers by the declarant, as well as any threat or risk of harm to others. In Bryant, the
fact that the perpetrator mortally wounded someone with a gun, had unknown motives, and
remained at large, sufficed to constitute an “ongoing emergency,” thus shifting the primary
purpose of the police’s questions to meeting this emergency and securing public safety, and
away from simply gathering evidence about past events. Id. at 374. Ultimately, the analysis
for determining the primary purpose of the police interrogation must be viewed objectively
and under the totality of the circumstances. State v. Jones, 135 Ohio St. 3d 10, 2012-Ohio-
5677, 984 N.E.2d 948, ¶ 156.
{¶12} Despite the state’s contention that Ms. Faulk’s statements did not trigger
Confrontation Clause protections, the circumstances surrounding her statements
demonstrate to the contrary. Initially, we note that the police had ascertained the course of
events before arriving at Ms. Faulk’s house by speaking with Mr. Jeffreys at his house and
were therefore aware that the incident had ended some time before (two to several hours
beforehand, depending upon who one believes). When they reached Ms. Faulk’s house, they
quickly realized who Mr. Smith was and handcuffed him, thereby neutralizing any
conceivable threat. Likewise, Mr. Smith’s apprehension diminished the seriousness of the
missing gun (i.e., this is not a case like Bryant where the perpetrator shot someone and
remained at large with the weapon). Additionally, Ms. Faulk knew the gun was no longer at
the residence and told police as much.
{¶13} Nor did the police focus on any exigent threat or safety concern in their
questioning. To the contrary, the police asked about what had happened, rather than what
was happening, procuring information about the past course of events, which then led to the
charges against Mr. Smith. Similarly, Ms. Faulk offered these statements in the presence of
the police and presumably under their protection. These factors all closely mimic the facts
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OHIO FIRST DISTRICT COURT OF APPEALS
present in Hammon v. Indiana (consolidated with Davis v. Washington), which the
Supreme Court found persuasive in determining that the witness’s statements to police were
in fact “testimonial.” There, the court noted that the police arrived after a domestic violence
incident drew to a close (no crashing of objects or yelling was heard as the police
approached the house), the police questioned the victim about what happened, and there
was no immediate threat to the victim’s person. Davis at 829-830. The court contrasted
the victim in Davis, who was alone and in immediate danger when she made the 911 call,
with the victim in Hammon, who made the statements in the presence of police and was
thus protected (like Ms. Faulk). Id. at 831. The court determined that “[o]bjectively viewed,
the primary, if not indeed the sole, purpose of the interrogation was to investigate a possible
crime—which is, of course, precisely what the officer should have done.” (Emphasis
omitted.) Id. at 830. Likewise here, objectively viewing the circumstances surrounding Ms.
Faulk’s interrogation, the primary purpose of the questioning was to gather facts regarding a
reported past crime for later prosecution and which, in fact, led to the formal arrest of Mr.
Smith.
{¶14} Having determined that the statements were testimonial in nature, they could
only be admissible if Ms. Faulk were present and available for cross-examination or if Mr.
Smith had a prior opportunity to cross-examine her. Crawford, 541 U.S. at 68, 124 S. Ct.
1354, 158 L. Ed. 2d 177 (“Where testimonial evidence is at issue, however, the Sixth
Amendment demands * * * unavailibility and a prior opportunity for cross-examination.”).
As neither of these circumstances applied, the admission of her interview by police violated
the mandate of the Confrontation Clause, and the court erred in ruling to the contrary.
Much like hearsay errors, Confrontation Clause violations are reviewed for harmless error,
and since the harmless error analysis for both is indistinguishable, we collectively address
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OHIO FIRST DISTRICT COURT OF APPEALS
those in Part C below. State v. Bell, 1st Dist. Hamilton No. C-160608, 2017-Ohio-8959, ¶ 14;
State v. Morris, 141 Ohio St. 3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 22-24 (harmless
error analysis for constitutional and nonconstitutional rights is the same); Crim.R. 52(A)
(“Any error, defect, irregularity, or variance which does not affect substantial rights shall be
disregarded.”).
B.
{¶15} Even if Ms. Faulk’s statements did not run afoul of the Confrontation Clause,
we would find that they violated basic hearsay norms. Hearsay is defined as an out-of-court
statement “other than one made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted.” Evid.R. 801(C). Though
normally inadmissible, under certain enurmerated exceptions, such statements can be
entered into evidence as proof of the matter asserted. See, e.g., Evid.R. 803 and 804. As we
recently clarified, we review challenges to the admissibility of hearsay statements under an
abuse of discretion standard. HSBC Bank USA, Natl. Assn. v. Gill, 1st Dist. Hamilton No. C-
180404, 2019-Ohio-2814, ¶ 10.
{¶16} At trial, neither side disputed the hearsay nature of Ms. Faulk’s statements,
but instead quibbled about whether they fit within any of the recognized exceptions. The
state insisted that the statements constituted either “excited utterances” or “present sense
impressions,” either of which provides a pathway to admissibility, with defense counsel
maintaining that the statements fell outside the bounds of any exceptions. After evaluation
of these issues, the court ultimately admitted the statements as “an ongoing emotional
situation” exception to the rule against hearsay. While it is not exactly clear which exception
the court had in mind, on appeal the parties focused our attention on the “excited utterance”
or “present sense impression” exceptions to the rule against hearsay.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶17} The excited utterance exception encompasses statements made while a
declarant is under the stress of a startling event. State v. Taylor, 66 Ohio St. 3d 295, 303,
612 N.E.2d 316 (1993). Therefore, hearsay statements may be admissible as an excited
utterance when: 1) there is an event startling enough to cause “nervous excitement” in the
declarant, 2) the statement, though not strictly contemporaneous, was made before the
declarant had time for the nervous excitement to subside, 3) the statement related to the
startling event, and 4) the declarant personally observed the startling event. Evid.R.
803(2); Taylor at 320-321.
{¶18} As a policy matter, we deem excited utterances “reliable because they do not
entail an opportunity for the declarant to reflect, thus reducing the chance to fabricate or
distort the truth.” State v. Lukacs, 188 Ohio App. 3d 597, 2010-Ohio-2364, 936 N.E.2d 506,
¶ 20 (1st Dist.). Therefore, when statements come with the opportunity for reflective
thought, they cannot squeeze through the excited utterance exception to the rule against
hearsay. See State v. Harris, 163 Ohio App. 3d 286, 2005-Ohio-4696, 837 N.E.2d 830, ¶ 7
(1st Dist.) (hearsay statement erroneously admitted as an excited utterance because
declarant, while still emotional at time of questioning, made statements clearly based on
reflective thought).
{¶19} Ultimately, Ms. Faulk’s responses to the police do not qualify as excited
utterances because they “lacked the spontaneous quality necessary for an excited utterance.”
See State v. Butcher, 170 Ohio App. 3d 52, 2007-Ohio-118, 866 N.E.2d 13, ¶ 34 (11th Dist.).
Viewing the body-camera footage, the police officer asked Ms. Faulk what happened, she
hesitated, the officer then admonished her to “tell the truth,” and she finally, somewhat
reluctantly, responded that “it happened.” Ms. Faulk’s behavior gives no indication that the
spark of an exciting event was still alight at the time she spoke with the police. See, e.g.,
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OHIO FIRST DISTRICT COURT OF APPEALS
State v. Henry, 11th Dist. Lake No. 2007-L-142, 2009-Ohio-1138, ¶ 148 (declarant’s
statements qualified as excited utterances when “his house was ablaze, he pulled out his
three grandchildren and unconscious wife from the residence, his son * * * was still in the
burning house, and he was nervous, crying, and rattled”); State v. Beasley, 153 Ohio St. 3d
497, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 180 (gunshot victim’s statements constituted
excited utterances after he was shot, still bleeding and scared when he made the
statements).
{¶20} For similar reasons, Ms. Faulk’s statements fail to qualify under the “present
sense impression” exception. Evid.R. 803(1) describes a present sense impression as “[a]
statement describing or explaining an event or condition made while the declarant was
perceiving the event or condition, or immediately thereafter unless circumstances indicate
lack of trustworthiness.” Though a statement made after an event can still pass muster as a
present sense impression, it must stand very close in time to the event. State v. Stafford,
158 Ohio App. 3d 509, 2004-Ohio-3893, 817 N.E.2d 411, ¶ 66 (1st Dist.) (present sense
impression when statement was made “a matter of seconds after the accident”). As with an
excited utterance, the justification for the present sense impression exception is the
spontenaity of the statement and lack of time for the declarant’s reflection. State v.
Alexander, 1st Dist. Hamilton No. C-110035, 2012-Ohio-460, ¶ 18 (exception applied when
“[declarant] had no time to reflect or to fabricate the substance of the conversation”).
{¶21} Even considering the conflicting timeline of events at issue in this appeal, at a
minimum over two hours elapsed since the incident transpired and when Ms. Faulk spoke
with police. Mr. Wilson and Mr. Smith both testified that Mr. Jeffreys and Ms. Faulk
arrived at the house at some time around 11:30 p.m. and Mr. Jeffreys’s version of events
takes place several hours prior to this. The passage of time since the incident, coupled with
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OHIO FIRST DISTRICT COURT OF APPEALS
Ms. Faulk’s behavior in the video, undermines the policy justifications for allowing such
statements into evidence, i.e., that statements made in close temporal proximity to the event
they describe bear a high degree of trustworthiness. See, e.g., State v. Essa, 194 Ohio
App.3d 208, 2011-Ohio-2513, 955 N.E.2d 429, ¶ 126 (8th Dist.) (“The key to the statement’s
trustworthiness is the spontaneity of the statement; it must be either contemporaneous with
the event or be made immediately thereafter.”). In sum, because the circumstances here do
not indicate that Ms. Faulk was under the strain or the stress of the event, nor did she speak
contemporaneously with the event, neither exception can apply. Finding that Ms. Faulk’s
statements satisfied neither the excited utterance nor present sense impresion exceptions,
we hold that the court therefore abused its discretion in admitting the statements.
C.
{¶22} In many cases, we must wrestle with the harmless error analysis by
comparing the impact of the improper evidence with the strength of the remaining evidence.
In this case, our task is rendered easier because the trial judge directly relied on Ms. Faulk’s
statements to find Mr. Smith guilty.
{¶23} Harmless error review requires: 1) that the defendant was prejudiced by the
admission of the improper evidence at trial, 2) that the appellate court believes that the
error was “not harmless beyond a reasonable doubt,” and 3) that after excising the improper
evidence, the remaining evidence overwhelmingly supports finding the defendant guilty.
Morris, 141 Ohio St. 3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, at ¶ 27-29.
{¶24} We find that the error here satisfies this standard. First, Mr. Smith was
prejudiced by the admittance of the evidence, particularly given the credibility issues with
Mr. Jeffreys. See State v. Harris, 142 Ohio St. 3d 211, 2015-Ohio-166, 28 N.E.3d 1256, ¶ 39
(erroneous admission of testimony prejudicial and impacted verdict when “there [was] a
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OHIO FIRST DISTRICT COURT OF APPEALS
reasonable possibility that [the] testimony contributed to [the defendant’s] convictions.”).
And we need not speculate on the impact of the erroneously admitted evidence in light of
the court’s outright acknowledgement of its reliance on the evidence in reaching its verdict.
The court told defense counsel that Ms. Faulk’s statements in the video caused it to find Mr.
Smith guilty. Accordingly, we find that the error was prejudicial and not harmless beyond a
reasonable doubt.
{¶25} Finally, as to the third prong of the harmless error anlysis, issues with the
strength of the remaining evidence become apparent in the absence of Ms. Faulk’s
testimony. As no gun was ever recovered and the only other person present, Mr. Wilson,
testified that he never saw Mr. Smith with a gun, the state’s case was reduced to the dueling
stories of Mr. Jeffreys and Mr. Smith. Ms. Faulk’s statements essentially broke that tie in
the court’s mind, as it appears that it was not enamored with Mr. Jeffreys’s testimony.
Regardless, this is not a case in which, despite the improperly admitted evidence, there is
other overwhelming evidence of guilt. See Morris at ¶ 30 (affirming lower court’s decision
to grant a new trial, where the weakness of the remaining evidence prevented the court of
appeals from holding the error was harmless); State v. Arnold, 147 Ohio St. 3d 138, 2016-
Ohio-1595, 62 N.E.3d 153, ¶ 53-54 (ample evidence existed for conviction outside of alleged
improper testimony). Thus, having determined that this error goes beyond “harmless,” we
find that the only remedy for the prejudice here is reversal and a new trial.
III.
{¶26} In addressing Mr. Smith’s second assignment of error, we note that our
determination that he is entitled to a new trial necessarily moots his weight of the evidence
challenge, but his sufficieny of the evidence challenge remains relevant. State v. Flannery,
1st Dist. Hamilton No. C-140426, 2015-Ohio-1360, ¶ 15 (weight of the evidence argument
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OHIO FIRST DISTRICT COURT OF APPEALS
mooted when defendant was granted new trial, but not sufficiency argument because of the
Double Jeopardy Clause). We therefore evaluate whether there was sufficient evidence to
support a conviction for aggravated menacing.
{¶27} The aggravated menacing statute states that “[n]o person shall knowingly
cause another to believe that the offender will cause serious physical harm to the person or
property of the other person, the other person's unborn, or a member of the other person's
immediate family.” R.C. 2903.21(A). “Serious physical harm to persons” includes “any
physical harm that carries a substantial risk of death.” R.C. 2901.01(A)(5)(b). A challenge
to the sufficiency of the evidence asks whether, viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found all the elements of
the crime proven beyond a reasonable doubt. State v. Millikin, 1st Dist. Hamilton Nos. C-
030825 and C-030826, 2004-Ohio-4507, ¶ 15.
{¶28} At trial, Mr. Jeffreys indicated that Mr. Smith had come and knocked on his
car window with a gun and held it there. He also emphasized that Mr. Smith had directly
threatened to shoot him in a profanity-laced tirade. Mr. Jeffreys explained that he believed,
because of these actions, Mr. Smith was going to shoot him.
{¶29} This testimony sufficed, if believed, to sustain a finding of guilt for aggravated
menacing. “For the offense of aggravated menacing, ‘[i]t is sufficient to prove that the
victim, in the moment, believed the defendant to be in earnest and capable of acting.’ ” City
of Cleveland v. Reynolds, 8th Dist. Cuyahoga No. 105546, 2018-Ohio-97, ¶ 6, quoting State
v. Marcum, 7th Dist. Columbiana No. 10 CO 17, 2011-Ohio-6140, ¶ 37; see Flannery, 1st
Dist. Hamilton No. C-140426, 2015-Ohio-1360, at ¶ 17 (victim’s testimony that he believed
defendant would kill him coupled with circumstantial evidence supporting the statement
was sufficient to prove a charge of aggravated menacing). Thus, Mr. Jeffreys’s testimony
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OHIO FIRST DISTRICT COURT OF APPEALS
that Mr. Smith threatened to kill him and he believed him, along with circumstancial
evidence, such as the fact that he reported the incident to police, sufficed, if believed, to
prove the elements of the crime of aggravated menacing. Therefore, Mr. Smith’s second
assignment of error, insofar as it addresses the sufficiency of the evidence, is overruled.
{¶30} Based on the foregoing, we sustain Mr. Smith’s first assignment of error and
overrule his second assignment of error, in regards to the sufficiency of the evidence
challenge. As his weight of the evidence challenge is moot, we do not address it. See App.R.
12(A)(1)(c). We accordingly remand this matter for a new trial consistent with the law and
this opinion.
Judgment reversed and cause remanded.
Mock, P.J., and Crouse, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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