State v. Tipton , 2020 Ohio 3680 ( 2020 )

[Cite as State v. Tipton, 2020-Ohio-3680.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28602
:
v. : Trial Court Case No. 2019-CRB-2266
:
FRED TIPTON, III : (Criminal Appeal from
: Municipal Court)
Defendant-Appellant :
:
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OPINION
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
.............
HALL, J.
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{¶ 1} Following a bench trial in the Dayton Municipal Court, Fred Tipton III was
found guilty of aggravated menacing and sentenced to 180 days in jail, which was
suspended. He appeals from the municipal court’s judgment. We affirm.
Factual and Procedural Background
{¶ 2} On May 13, 2019, Tipton was charged with one count of aggravated
menacing, in violation of R.C. 2903.21(A), a first-degree misdemeanor. Tipton pleaded
not guilty, and the matter proceeded to a bench trial. The evidence presented showed the
following facts.
{¶ 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
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did not remember that threat. Renee also said that Tipton claimed that the hospital was
being watched and that Renee needed to watch her back. It was then that Renee called
the police from her own phone. When the police arrived, McDermott was still on the phone
with Tipton. An officer told McDermott to hang up, and he did. The officer testified that
Renee appeared very frantic and scared and worried.
{¶ 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,
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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 * * *.” R.C. 2903.21(A). “A person acts knowingly, regardless of purpose, when
the person is aware that the person’s conduct will probably cause a certain result or will
probably be of a certain nature. A person has knowledge of circumstances when the
person is aware that such circumstances probably exist.” R.C. 2901.22(B).
{¶ 11} Tipton argues that he did not know his threats were being conveyed or
would be conveyed to Renee. The plain language of R.C. 2903.21 does not require that
the threats be made directly to the victim. “[A] threat to cause harm need not be made
directly to the intended victim but may be sufficient if made to a third-party * * * whom the
defendant knew or reasonably * * * should have known would convey the threat to the
intended victim.” State v. McWilliams, 5th Dist. Stark No. 2011-CA-00051, 2012-Ohio-
663, ¶ 23. Accord Dunn v. Clark, 12th Dist. Warren No. CA2015-06-055, 2016-Ohio-641,
¶ 14 (the defendant was aware that the third-party was in an intimate relationship with the
victim, so it could be inferred that the defendant “knew or reasonably should have known”
the third-party would tell the victim about threats); State v. Knoble, 9th Dist. Lorain No.
08CA9359, 2008-Ohio-5004, ¶ 25 (concluding that the defendant’s threats were made
knowingly because it was “more likely than not” that a third-party would inform the victim).
{¶ 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
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McDermott would tell Renee about Tipton’s threats against her. See Dunn.
{¶ 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, 678 N.E.2d 541,
quoting Martin, 20 Ohio App. 3d at 175, 485 N.E.2d 717. 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.
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FROELICH, J. and WELBAUM, J., concur.
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Copies sent to:
Amy B. Musto
James S. Sweeney
Hon. Mia Wortham Spells