State v. Strange , 2019 Ohio 4188 ( 2019 )

[Cite as State v. Strange, 2019-Ohio-4188.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28200
:
v. : Trial Court Case No. 2018-CR-2098/1
:
STEVEN P.W. STRANGE : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 11th day of October, 2019.
...........
MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Atty. Reg. No. 0095826, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee
J. DAVID TURNER, Atty. Reg. No. 0017456, P.O. Box 291771, 101 Southmoor Circle
NW, Kettering, Ohio 45429
Attorney for Defendant-Appellant
.............
DONOVAN, J.
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{¶ 1} Steven Strange appeals from an October 31, 2018 judgment entry of
conviction; he was found guilty of one count of intimidation of a victim, in violation of R.C.
2921.04(B)(1), a felony of the third degree, following a jury trial. We affirm the judgment
of the trial court.
{¶ 2} Steven was initially charged on June 3, 2018, by way of complaint in the
Montgomery County Municipal Court, Western Division, with one count of trespass in a
habitation (person present or likely to be present), in violation of R.C. 2911.12(B), a felony
of the fourth degree. A warrant for his arrest was issued the same day. The matter was
subsequently transferred to the court of common pleas, and Steven was indicted on July
5, 2018, on one count of intimidation of a victim (Count I) and one count of trespass in a
habitation (Count II). Count I included Heather Strange, the defendant’s sister, as a co-
defendant and provided that the offenses occurred between June 4 and July 3, 2018.1
On July 10, 2018, the court entered a plea of not guilty on Steven’s behalf.
{¶ 3} On October 10, 2018, Steven filed a motion in limine requesting that the trial
court exclude evidence of certain text messages to his phone from “Kelly” (Kelly Strange,
Steven’s mother), as well as communications by his parents to the complaining witness.
The following day, Steven filed an amended motion in limine, requesting that the court
exclude text messages from Heather Strange and Bryanna Owens to the complaining
witness. The court did not rule on the motions in limine on the record.
{¶ 4} Trial was held in October 2018.
{¶ 5} David Mullins testified that on June 2, 2018, he resided in New Lebanon with
his girlfriend, Jessica Payne, and Payne’s five-year-old daughter. He stated that, at the
The charge against Heather was dismissed on May 22, 2019.
1
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time, their home did not have electricity, and they were using a generator that was low on
gas. David testified that Jessica called Heather Strange to borrow money to purchase
gas, and that Heather brought $80 to their home.
{¶ 6} David testified that, after going to bed that evening, he was awakened at 3:00
a.m. to a loud banging on their front door. He testified that he went downstairs with
Jessica behind him, opened the door, and observed Steven “standing there screaming.”
Steven stated that “his [Steven’s] dad was sleeping with my girlfriend and he wanted his
sister’s money and then he like banged into me into the door and pushed into the house.”
According to David, Jessica told Steven to get out or she was going to call the police.
David also told Steven to get out, but Steven kept screaming. David testified that Steven
then “put a cigarette in his mouth and went to light it and when he did I like hit him and
shoved him out the door” and locked it. David observed two other men with Steven who
did not enter his home.
{¶ 7} David testified that the police arrived minutes after Steven left, and they took
his statement. He stated that he told Heather when she dropped off the money that he
would pay her back on Sunday when he got paid. David identified a photo of the front
door of his home, which he stated showed “Steven’s shoeprint where he had been kicking
my door.” David testified that the police officers retrieved the cigarette, photographed
his door, and copied text messages sent from Steven’s mother to Jessica’s phone.
{¶ 8} The following exchange occurred:
[PROSECUTOR] Q. * * * And later on, were you contacted by any
members of Steven’s family?
A. Yes.
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Q. And around when was that that you, personally, were contacted
by them?
A. Just like a couple days after.
Q. What happened?
A. At first, Heather had just been sending - - Steven’s sister had
been sending text messages saying - -
[DEFENSE COUNSEL]: Objection - -
THE WITNESS: - - if Steven goes to jail - -
***
THE COURT: Wait, one second. Counsel approach.
(At sidebar)
[PROSECUTOR]: I’m just trying to elicit the events - -
***
THE COURT: I guess part of my concern here is is there a
connection. Was he talking to her because if, in fact, there’s a chain of,
you know, call her, do something and then she talks to someone that’s part
of the operative facts, so. It’s beyond the hearsay exception. But there
needs to be a connection and is that going to come out at some point
through the phone calls - -
[PROSECUTOR]: Yes. So Steven contacts Heather to try to get
her to take care of it as well.
THE COURT: And then - - and that was before these phone calls
or texts - -
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[PROSECUTOR]: Yes.
***
THE COURT: * * * I understand that but, again, threats can be direct
or indirect. So I guess if there’s a good-faith belief that the phone calls from
the defendant to his sister are before these texts, then you can get into it.
***
THE COURT: And I won’t know until you get that guy on.
***
THE COURT: You check it out and make sure the dates are - -
[DEFENSE COUNSEL]: Okay.
THE COURT: * * * Objection overruled.
(End sidebar)
David further testified that, toward the end of June, he and Jessica ran into Heather
and her boyfriend, Eric, at the Dollar General in Drexel, and that Heather approached
Jessica and repeatedly asked her for $80. He stated that after they got into their car,
Eric came around to the driver’s side and started beating on David’s window.
{¶ 9} The following exchange occurred:
BY [PROSECUTOR]:
Q. And are you aware of anything else around that time, as well, that
happened to you specifically?
A. Steven’s dad had come in front of my dad’s house.
Q. And around when was that? Was that in June as well or when
was that?
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A. Towards the end.
Q. Of June?
A. Yes.
Q. * * *. Of 2018?
A. Yes. He had - - Steven’s dad pulled up in a black truck on the
right side of my dad’s house. There’s a stop sign and then there’s the brick
wall of the highway in front so you have to go left or right. Well, he was in
a black truck with a trailer dragging behind and he had turned the corner,
took a left and stopped in front of my dad’s and rolled the window down and
told Jessica - -
[DEFENSE COUNSEL]: Objection, Your Honor.
THE COURT: Overruled.
THE WITNESS: He said * * * you’re going to get yours, b****. And
then he hold (sic) the brake and hit the gas until it got real smoky and then
let off the brake and took off.
{¶ 10} David testified that after the incidents, he thought that if he and Jessica
went “to court on Steven that they’re going to try to hurt us.” He testified that, as a result,
Jessica began carrying pepper spray and he began carrying a knife, “[b]ecause if they all
come up on me, I’m not going to let them kill me.”
{¶ 11} On cross-examination, David stated that he did not observe Steven kicking
the front door of his home. He stated that the men behind Steven “were just kinda like
standing there back of him and the other guy was trying to get him to come on.” David
testified that after the incident at his father’s house, he “flagged an officer down” in New
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Lebanon and “told him that they had approached me.”
{¶ 12} Jessica Payne testified that she had known Heather Strange for two and a
half years and was friends with her, Steven, and their sister, Ashley. She testified
consistently with David regarding Steven’s entering their home. Jessica testified that
she called the police after Steven left and gave them a statement.
{¶ 13} The following exchange occurred after Jessica was asked if she had been
approached by a member of the Strange family after the incident:
A. The first time was within a couple days after the incident on June
2nd which was by his mother. She came to my job [at Casey’s gas station
in New Lebanon.]
[PROSECUTOR] Q. Can you recall, at all, like a date?
A. No, I know it was before June 7th. It was in five days between
June 2nd and June 7th.
Q. * * * What happened in that incident?
A. She had came in and - -
Q. She who?
A. Kelly did, Steven’s mom.
***
A. Came in and told me that it was complete bullcrap that we were
--
[DEFENSE COUNSEL]: Objection, Your Honor.
THE WITNESS: - - that we called the police against Steven.
THE COURT: Overruled.
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THE WITNESS: And told me that she was going to make me lose
my job. I asked her how so. And she said that I had gave her free food
before. I told her to get out of my job and I was going to make her trespass
off - - I called the officer. He came and took a statement.
***
Q. * * * And how about the second incident? When did this happen?
A. The second incident was in the same - - within the same two
weeks. I don’t know the exact date. And Heather and Eric, which is
Steven’s sister and her boyfriend, came up to me and Dave - -
[DEFENSE COUNSEL]: Objection.
THE WITNESS: - - and my five-year-old daughter at the Dollar
General in Trotwood.
BY [PROSECUTOR]: And what happened there?
A. She met me by the door entrance of the Dollar General and was
telling me to give her $80 right then and to not go to court against Steven.
We told her to get away because I had my daughter with us. I hurried up
and got in the vehicle, shut all the doors. And that’s when Heather’s
boyfriend, Eric, came around and started pounding on my windshield and
the side doors.
Q. And how did you feel when this was happening.
A. Scared. My daughter was with me.
Q. Before that, did you have any issues with Eric?
A. * * * No, I have not.
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***
Q. And how about the next incident, what happened?
A. I was standing at my boyfriend Dave’s father’s house in
Trotwood and Steven’s father, Big Steve, came up in his truck around the
house - - and we were standing out front - - and he stopped and he looked
at me and pointed and he said you’ll get yours b**** and he rolled up and
he revved up his engine and started off down the street. I made another
incident on that.
{¶ 14} Jessica stated that she felt threatened and that Steven’s family had
threatened her and her entire family. She stated that Steven’s girlfriend, “Bree,” had
texted her several times after that incident, begging her “to not go further, more court
dates and stuff against Steven.”
{¶ 15} Officer Clinton Goad testified that he was employed by the New Lebanon
Police Department, and that he responded to Casey’s on June 6, 2018, where he came
into contact with Jessica. The following exchange occurred:
[PROSECUTOR] Q. And so when you were speaking with Jessica,
who did you come to understand had came into the General Store?
A. She advised that Kelly Strange had come to the General Store.
***
Q. And what was the nature of the contact between them?
A. Jessica advised that Kelly had come to the store - -
[DEFENSE COUNSEL]: Objection, Your Honor.
THE COURT: Counsel approach.
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(At sidebar)
THE COURT: * * * I’m trying to figure out. This is on because the
witness intimidation includes what she said in the report. I believe -- * * *
try to keep him from specifics but I think you can get into what happened
and if there was a threat that can come out - -
[DEFENSE COUNSEL]: (Indiscernible)
THE COURT: Well, and he explained that. The thing is normally if
someone goes and talks to someone you can’t - - so-and-so said such-and-
such. But the whole point of this is witness intimidation. So she reported
that. And I think if you can try as much, unless there were threats in there
and I’m not exactly sure what was said, he can go over to what happened
in a general - - what was going on - -
***
THE COURT: * * * So kind of watch it but I’m going to give a little
latitude and that’s only because this is witness intimidation which includes
threats.
***
THE COURT: So if she’s reporting a threat, I think that’s okay. * * *
(End Sidebar)
BY [PROSECUTOR]: And what was the nature of the contact
between Kelly Strange and Jessica Payne?
A. Jessica explained to me that Kelly had been unpleasant after a
short time at the store and had harassed her and talked about this case and
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threatened to get her fired and Jessica did not want to put up with that so
she spoke with her bosses and her boss had given her permission to have
Kelly trespassed from the store.
{¶ 16} Officer Steven Gingry of the New Lebanon Police Department testified that
on June 2, 2018, he was working as a patrolman when he responded to David and
Jessica’s home on a report of “shots fired at a house.” He stated that he collected a
“burnt cigarette” and a pack of L&M cigarettes, and he photographed the front door.
Gingry obtained written statements from David and Jessica. He testified that he looked
for shell casings in the area of the house and for bullet holes in the home “because they
said that they possibly heard gunshot,” but he did not find anything. Gingry stated that
he returned to the police department and then went to Steven’s home, where he found
Steven in the driveway. Gingry stated that he placed Steven under arrest. On cross-
examination, Gingry stated that David brought the cigarette to him from inside the home.
On redirect examination, Gingry testified that the cigarette he collected was analyzed for
DNA and that David’s and Steven’s DNA were on the cigarette.
{¶ 17} Scott Chapman, the administrative sergeant at the Montgomery County
Sheriff’s Office and the keeper of the records, testified that the jail phone system was
recorded by Paytel. Chapman testified that, in order to make a phone call, inmates must
enter a pin number consisting of their booking number and the last four digits of their
Social Security number, and the Paytel system allows them to access their phone calls
by means of the pin numbers. Chapman testified that he retrieved three of Steven’s
recorded phone calls. He identified a disk he made containing the calls.
{¶ 18} Officer Gingry was recalled, and he testified that he listened to recordings
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of Steven’s phone calls, which included phone calls from the jail between Steven and his
girlfriend, Bryanna Owens; his mom, Kelly Strange; his father, Steven Strange; and his
sisters, Ashley and Heather Strange. A two-minute audio recording was played for the
jury, and Gingry testified that the phone calls reflected “Steven trying to get his family
members to go to Dave and Jessica’s house and either harm them or intimidate them to
not show up for court or drop the case or not prosecute this case.” He stated that the
call were made on June 4, June 8, 2018, and June 10, 2018, and these calls were played
for the jury. Gingry testified that, based upon the recorded calls, he was concerned that
“harm was going to be inflicted on the victims of this reported crime.” He testified that he
was aware of the incident at Dollar General involving David, Jessica, Heather and Eric,
as well as the incident in front of David’s father’s home. On cross-examination, Gingry
testified that he reviewed the calls on June 19, 2018, and contacted Jessica the following
day. He stated that he was also aware of the incident at Jessica’s place of employment.
{¶ 19} At the conclusion of the State’s evidence, the court overruled defense
counsel’s motion for judgment of acquittal.
{¶ 20} Bryanna Owens, Steven’s former girlfriend, and Brandon Schroyer,
Steven’s friend, testified on Steven’s behalf. Their testimony was not relevant to the
offense of intimidation of a victim but only to the trespass offense.
{¶ 21} The jury found Steven guilty of intimidation of a victim and not guilty of
trespass in a habitation. He was sentenced to 30 months in prison.
{¶ 22} Steven asserts three assignments of error. His first assigned error is as
follows:
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN
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ADMITTING HEARSAY EVIDENCE OVER THE OBJECTION OF
DEFENSE COUNSEL.
{¶ 23} As this Court noted in Abrams v. Abrams, 2017-Ohio-4319, 92 N.E.3d 368,
¶ 30 (2d Dist.):
* * * “ ‘Hearsay’ is a 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). “To constitute hearsay, two
elements are needed. First, there must be an out-of-court statement.
Second, the statement must be offered to prove the truth of the matter
asserted. If either element is not present, the statement is not ‘hearsay.’ ”
(Footnote and citations omitted) State v. Maurer, 15 Ohio St.3d 239, 262,
473 N.E.2d 768 (1984). Accord State v. Tate, 2d Dist. Montgomery No.
25386, 2013-Ohio-5167, ¶ 75.
{¶ 24} In State v. Brown, 2d Dist. Montgomery No. 27571, 2018-Ohio-3294, we
observed:
An out of court statement is not hearsay if it “is offered to prove a
statement was made and not for its truth, * * * to show a state of mind, or to
explain an act in question.” Maurer at 262. Accord State v. Williams, 38
Ohio St.3d 346, 348, 528 N.E.2d 910 (1988) (finding “[a] statement is not
hearsay if it is admitted to prove that the declarant made it, rather than to
prove the truth of its contents”). We review rulings regarding hearsay
under an abuse-of-discretion standard. (Citation omitted.) State v. Williams,
2d Dist. Montgomery No. 26369, 2016-Ohio-322, ¶ 17.
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Id. at ¶ 21.
{¶ 25} This Court further noted in Brown:
* * * “A trial court abuses its discretion when it makes a decision that
is unreasonable, unconscionable, or arbitrary. An abuse of discretion
includes a situation in which a trial court did not engage in a ‘sound
reasoning process.’ Abuse-of-discretion review is deferential and does not
permit an appellate court to simply substitute its judgment for that of the trial
court.” State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d
971, ¶ 34.
Id. at ¶ 17.
{¶ 26} Steven directs our attention to David’s testimony, as described above,
wherein David stated that Heather had been sending text messages, defense counsel
objected, and a sidebar occurred. The court overruled the objection, and then David
testified that he and Jessica were approached by Heather and Eric at the Dollar General,
where Heather demanded money and Eric subsequently beat on the driver’s side window
of the car with Jessica’s daughter inside. David further testified that Steven’s father
threatened Jessica by saying, “you’re going to get yours b****.” Steven also directs our
attention to Jessica’s testimony that his mother, Kelly Strange, told her at Jessica’s place
of employment that she “was going to make [Jessica] lose [her] job,” that Heather told her
at the Dollar General “not to go to court against Steven,” and that Steven’s father told her,
“you’ll get yours b****.” Finally, Steven directs our attention to Officer Goad’s testimony
that Jessica advised him that Kelly Strange came into her workplace and “harassed her
and talked about this case and threatened to get her fired.”
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{¶ 27} Steven asserts that all of this testimony was improper hearsay evidence,
and that Goad’s testimony “was hearsay within hearsay.” He argues that the error in
admitting the testimony was not harmless. Steven asserts that the “only remedy for the
prejudicial error is vacating the conviction and granting a new trial.”
{¶ 28} The State responds that “in each instance, the statements were not
hearsay, or in the alternative satisfied an exception to the hearsay rule, and the trial court
did not abuse its discretion by allowing the statements.”
{¶ 29} We agree with the State that David’s and Jessica’s testimony was admitted
to prove that the threatening statements and conduct by Heather, Eric, and Steven’s
father occurred, and that David’s and Jessica’s testimony accordingly was not hearsay.
We further conclude that David’s and Jessica’s testimony was offered to prove the effect
that the threats had upon them, i.e. their state of mind. See State v. Hanna, 5th Dist.
Knox No. 02CA000041, 2003-Ohio-6402, ¶ 21. In other words, the court did not abuse
its discretion in admitting the testimony.
{¶ 30} Regarding Goad’s testimony, we note that Crim.R. 52 provides: “Any
error, defect, irregularity, or variance which does not affect substantial rights shall be
disregarded.” We conclude that any error in admitting Goad’s testimony that Jessica told
him that Kelly, Steven’s mother, had threatened Jessica’s employment was harmless.
Jessica herself testified regarding her encounter with Kelly prior to Goad’s testimony, and
his testimony was consistent with and merely cumulative of Jessica’s. In other words, in
the absence of Goad’s testimony, the outcome of the trial would have been the same.
{¶ 31} For the foregoing reasons, Steven’s first assignment of error is overruled.
{¶ 32} Steven’s second assignment of error is as follows:
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THE STATE DID NOT PRESENT SUFFICIENT EVIDENCE THAT
APPELLANT’S THREAT WAS AN “UNLAWFUL THREAT OF HARM” OR
“UNLAWFUL THREAT TO COMMIT ANY OFFENSE OR CALUMNY” IN
VIOLATION OF R.C. 2901.04 AND THE JURY’S VERDICT CONVICTING
APPELLANT OF INTIMIDATION WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
{¶ 33} Steven asserts as follows:
The state presented evidence to the jury that consisted of redacted
portions of three recorded jail calls made by appellant to members of his
family. Appellant did not make any direct threat to either alleged victims
[David] or [Jessica] in these recorded jail calls. The statements made by
appellant did not connote more than just a threat, i.e. more than just a
communication to a person that particular negative consequences will
follow should the person not act as the communicator demands.
Appellant’s statements to members of his family during these recorded jail
calls did not violate established criminal or civil law and, therefore, did not
constitute an “unlawful threat of harm” as set forth in [State v. Cress, 112
Ohio St.3d 72, 2006-Ohio-6501, 858 N.E.2d 341].
(Emphasis sic.)
{¶ 34} This Court has previously noted:
When a conviction is challenged as being against the weight of the
evidence, an appellate court must review the entire record, weigh the
evidence and all reasonable inferences, consider witness credibility, and
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determine whether, in resolving conflicts in the evidence, the trier 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). In a manifest-
weight analysis, the credibility of the witnesses and the weight to be given
to their testimony are primarily for the trier of fac[t] to resolve. State v.
DeHaas, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). “Because the factfinder
* * * has the opportunity to see and hear the witnesses, the cautious
exercise of discretionary power of a court of appeals to find that a judgment
is against the manifest weight of the evidence requires that a substantial
deference be extended to the factfinder's determinations of credibility. The
decision whether, and to what extent, to credit the testimony of particular
witnesses is within the peculiar competence of the factfinder, who has seen
and heard the witnesses.” State v. Lawson, 2d Dist. Montgomery No.
16288, 1997 WL 477684, *5 (Aug. 22, 1997). This court will not substitute
its judgment for that of the trier of fact on the issue of witness credibility
unless it is patently apparent that the trier of fact lost its way. State v.
Bradley, 2d Dist. Champaign No. 97-CA-03, 1997 WL 691510 (Oct. 24,
1997). * * *
State v. Nelson, 2d Dist. Greene No. 2014-CA-7, 2015-Ohio-113, ¶ 29.
{¶ 35} Regarding the sufficiency of the evidence, this Court has previously stated:
“A sufficiency of the evidence argument disputes whether the State
has presented adequate evidence on each element of the offense to allow
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the case to go to the jury or sustain the verdict as a matter of law.” State
v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10, citing
State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). When
reviewing whether the State has presented sufficient evidence to support a
conviction, “the relevant inquiry is whether any rational finder of fact, after
viewing the evidence in the light most favorable to the State, could have
found the essential elements of the crime proven beyond a reasonable
doubt.” State v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997),
citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979). A guilty verdict will not be disturbed on appeal unless, “reasonable
minds could not reach the conclusion reached by the trier-of-fact.” Id.State v. Wilson, 2d Dist. Montgomery No. 27001, 2016-Ohio-7329, ¶ 6.
{¶ 36} R.C. 2921.04 provides, in pertinent part:
(B) No person, knowingly and by force or by unlawful threat of harm
to any person or property or by unlawful threat to commit any offense or
calumny against any person, shall attempt to influence, intimidate, or hinder
any of the following persons:
(1) The victim of a crime or delinquent act in the filing or prosecution
of criminal charges or a delinquent child action or proceeding;
{¶ 37} In Cress, to which Steven directs our attention, the Ohio Supreme Court
determined as follows:
An unlawful threat must * * * connote more than just a threat, i.e.,
more than just a communication to a person that particular negative
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consequences will follow should the person not act as the communicator
demands. The word “unlawful” in R.C. 2921.04(B) must add substantive
meaning, or it is superfluous. * * *
We hold * * * that the statutory language in R.C. 2921.04(B),
proscribing intimidation by an “unlawful threat of harm,” is satisfied only
when the very making of the threat is itself unlawful because it violates
established criminal or civil law. For example, where the making of a threat
constitutes the offense of coercion, in violation of R.C. 2905.12, a
misdemeanor, that offense would serve as a predicate offense for the crime
of witness intimidation as proscribed by R.C. 2921.04(B), a felony.
(Emphasis sic.) Cress, 112 Ohio St.3d 72, 2006-Ohio-6501, 858 N.E.2d 341, at
¶ 41-42 (footnote omitted).
{¶ 38} We have listened to the recorded phone calls. It is clear that Steven’s
statements in the calls were related to the underlying trespass charge, and that Steven
wanted to hinder his prosecution. In the first call between Steven and his parents,
Steven says, “Y’all can’t just pull up down there like right now?” He tells his mother, “You
and Dad can walk down there and fix that s***. * * * They’ll listen.” Steven’s mom
responded, “ * * *I tried and you know what he said, I got this taken care of.” Steven said
“Dad is going to f****** sink me, Dude. You guys pull up down there or I’ll be * * *.”
Steven’s mother acknowledges, “We chased them.” Steven also says, “Why haven’t
Dad and Eric pulled up down there?” In the course of the call, Steven says, “If I was out
there you’d see what the f*** I’d do. * * * Then you guys can do the same f****** s***.”
Steven said, “Dad needs to get off his a** and go take care of that.” Steven asked his
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parents, “You want me to come home and f****** blow your f****** house up?” Steven
told his parents, “You probably need to talk to some high hitters * * * and have this
resolved,” and at the end of the call, he stated, “Anyway, you know what the deal is.”
{¶ 39} In the second call, Steven was talking to a female and tells her, “When I
come home they’re going to regret f***** * * *.” He asks, “Are they really going to press
the issue?” The female responds, “* * * They’re getting cut off in Drexel everywhere,
Dude. Everywhere they turn they’re going to get f****** turned down, Dude.” Steven
asks her, “They’ve been getting turned down?” The female responds, “No, they’re going
to. * * * .” Steven responds, “You guys can’t just pull up and say how about this,” and
the female responds, “We already did, and they said they’re going to call the cops on us.”
Steve says, “No way, so they’re for real.”
{¶ 40} In the third call, Steven asks a female speaker what Ashley said, and the
partial response was, “What more can I do besides message and blow the b**** up?”
{¶ 41} Viewing the evidence in a light most favorable to the State, we conclude
the jury could have reasonably found that Steven’s statements to his family were an
attempt to intimidate David and Jessica as proscribed by R.C. 2921.04(B)(1). The jury
could reasonably infer from Steven’s repeated urging to his parents to “fix that sh**,” and
“go take care of that,” and “talk to some high hitters,” that Steven wanted his family to
unlawfully threaten David and Jessica or their property with harm. Steven asked his
parents, “You want me to come home and f****** blow your f****** house up,” before telling
them, “You know what the deal is.”
{¶ 42} Our conclusion is supported by the subsequent actions of Steven’s family.
Jessica testified that, at the Dollar General, Heather demanded money and told her “not
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to go to court against Steven” in a manner that caused Jessica and David to flee to their
car with Jessica’s young daughter. Heather’s boyfriend, Eric, followed them to their
vehicle and then beat on the windshield and doors. Jessica testified that Steven’s father,
from his truck, told her, “you’ll get yours, b****.” Additionally, Jessica testified that
Steven’s mother came to her place of work and said “that she was going to make me lose
my job.”
{¶ 43} We note that R.C. 2903.22 proscribes menacing and provides: “(A) No
person shall knowingly cause another to believe that the offender will cause physical harm
to the person or property of the other person * * * or a member of the other person’s
immediate family. * * *.”
{¶ 44} David testified that he feared “if * * * we go to court on Steven that they’re
going to hurt us,” and that he began carrying a knife for protection. Jessica testified that
Steven’s family had threatened her and her entire family, and that she began carrying
pepper spray as a result. Officer Gingry testified that, based upon the recorded phone
calls, he was concerned that “harm was going to be inflicted on the victims * * *.” The
jury clearly credited the testimony of the State’s witnesses, and we defer to the jury’s
assessment of credibility.
{¶ 45} Having reviewed the entire record, and construing the evidence most
strongly in favor of the State, we conclude that Steven’s conviction for intimidation of a
victim, in violation of R.C. 2921.04(B)(1), was supported by sufficient evidence.
Furthermore, it was not against the manifest weight of the evidence. Steven’s second
assignment of error is overruled.
{¶ 46} Steven’s third assignment of error is as follows:
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THE PROSECUTING ATTORNEY COMMITTED
PROSECUTORIAL MISCONDUCT THAT DEPRIVED APPELLANT OF
HIS RIGHT TO A FAIR TRIAL.
{¶ 47} Steven asserts that the State engaged in prosecutorial misconduct when
the assistant prosecuting attorney made the following inflammatory and prejudicial
statement in the State’s opening statement, which Steven claims was not supported by
the evidence: “In one jail call, [Steven] said to his father, ‘You need to fix this; I’ll get out;
I’ll blow your house up.’ ” Steven points out that defense counsel objected to this
statement, but the objection was overruled by the trial court.
{¶ 48} The State responds that simply stating Steven’s words to his father, which
were recorded on a jail phone call and played for the jury later in the trial, did not prejudice
Steven. The State also points out that, even if the prosecutor had not referred to the
statement, the jury would have heard the jail calls and the statements made by Steven
during trial, so he could not have been prejudiced.
{¶ 49} As this court has previously noted:
* * * “Generally, prosecutors are entitled to considerable latitude in
opening and closing arguments.” State v. Whitfield, 2d Dist. Montgomery
No. 22432, 2009-Ohio-293, ¶ 12. Accord State v. Ballew, 76 Ohio St.3d 244,
255, 667 N.E.2d 369 (1996). The trial court generally determines the
propriety of statements made during opening statement. State v. Loza, 71
Ohio St.3d 61, 641 N.E.2d 1082 (1994). Opening statement is not evidence
but is intended to advise the jury of what counsel expects the evidence to
show. State v. Turner, 91 Ohio App.3d 153, 631 N.E.2d 1117 (1st
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Dist.1993). As such, the prosecutor and defense counsel may, in good
faith, make statements as to what they expect the evidence will show. Id.The test for prosecutorial misconduct is whether the remarks were
improper, and if so, whether they prejudicially affected the accused's
substantial rights. State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 883(1984). The touchstone of the analysis “is the fairness of the trial, not the
culpability of the prosecutor.” Smith v. Phillips, 455 U.S. 209, 219, 102
S.Ct. 940, 71 L.Ed.2d 78 (1982). The question is whether the prosecutor's
misconduct so infected the accused's trial with unfairness that the accused's
convictions came in violation of the right to due process. Donnelly v.
DeChristoforo, 416 U.S. 637, 644, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974).
State v. Taylor, 2d Dist. Montgomery No. 23990, 2014-Ohio-3647, ¶ 36-37.
{¶ 50} We note that, prior to opening statements, the court instructed the jury that
“[o]pening statements are not evidence but they are a preview of the claims of each party
designed to help you follow the evidence as it is presented.” The entirety of the
exchange during the prosecutor’s opening statement was as follows:
[THE PROSECUTOR]: * * *
***
Now, between the 4th of June and 3rd of July, Mr. Strange was
arrested and while he was in jail he tried to fix the situation as I explained
to you taking it one step a little too far. We have several jail calls where
he’s talking to his father, his sister, and his mother. He’s imploring them - -
fix this, go do something, go talk to them - - meaning [Jessica], [David] - -
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go talk to them. In one jail call, he said to his father, “You need to go fix
this; I’ll get out; I’ll blow your house up.”
Now, with him just saying go do this, go take care of it, we have even
more than that. They did try to fix this. You’ll hear evidence that they
popped up at [Jessica’s] job, meaning the mother - -
[DEFENSE COUNSEL]: Objection, Your Honor.
THE COURT: Overruled. You may proceed.
[THE PROSECUTOR]: - - showed up at [Jessica’s] job and tried to
talk to them several times, tried to get them to dismiss the case, tried to get
them not to show up. That’s the issue in this case.
{¶ 51} Steven mischaracterizes the record when he asserts that defense counsel
objected to the prosecutor’s statement that Steven was recorded threatening to blow up
his parents’ home; defense counsel objected to the prosecutor stating that “they popped
up at [Jessica’s] job, meaning the mother - -”, and not to the remark about Steven’s threat
to blow up his parents’ home.
{¶ 52} As this Court has noted:
Failure to object waives all but plain error. McBride v. Quebe,
Montgomery App. No. 21310, 2006-Ohio-5128. Plain error exists “if the
trial outcome would clearly have been different, absent the alleged error in
the trial court proceedings.” State v. Rollins, Clark App. No. 2005-CA-10,
2006-Ohio-5399. “[T]o successfully prevail under plain error the
substantial rights of the accused must be so adversely affected that the
error undermines the ‘fairness of the guilt determining process.’ ” State v.
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Ohl (Nov. 27, 1991), Ashland App. No. CA-976, 1991 WL 274508.
State v. Bahns, 185 Ohio App.3d 805, 2009-Ohio-5525, 925 N.E.2d 1025, ¶ 25 (2d Dist.).
{¶ 53} As the State notes, Steven’s recorded statement was admitted into
evidence. Plain error is not demonstrated. For the foregoing reasons, Steven’s third
assignment of error is overruled.
{¶ 54} The judgment of the trial court is affirmed.
.............
WELBAUM, P.J. and HALL, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Michael P. Allen
J. David Turner
Hon. Barbara P. Gorman