State v. Lauck , 2023 Ohio 1433 ( 2023 )

[Cite as State v. Lauck, 2023-Ohio-1433.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
STATE OF OHIO,
CASE NO. 5-22-07
PLAINTIFF-APPELLEE,
v.
RONALD DEAN LAUCK, OPINION
DEFENDANT-APPELLANT.
Appeal from Hancock County Common Pleas Court
Trial Court No. 2021-CR-00249
Judgment Affirmed
Date of Decision: May 1, 2023
APPEARANCES:
Karin L. Coble for Appellant
Phillip A. Riegle for Appellee
Case No. 5-22-07
WILLAMOWSKI, J.
{¶1} Defendant-appellant Ronald D. Lauck (“Lauck”) brings this appeal
from the judgment of the Court of Common Pleas of Hancock County convicting
him of one count of intimidation. On appeal, Lauck claims that the judgment is not
supported by sufficient evidence and is against the manifest weight of the evidence.
For the reasons set forth below, the judgment is affirmed.
{¶2} On August 23, 2020, officers were dispatched to Lauck’s home after a
report of an altercation between Lauck’s son, Jase, and his girlfriend. Deputy Justin
Ritter (“Ritter”) was the first on the scene and after speaking with Lauck and the
victim, began to look for Jase. At that time, Lauck was “very cordial”. Tr. 114.
Ritter was informed that Jase had run into the cornfield. Multiple officers began
searching the area for Jase and Ritter returned to the area to speak with the alleged
victim and to see if Jase returned.
{¶3} While conducting the investigation, Ritter noticed that Lauck had
become intoxicated and more argumentative. The interactions between the two
became more hostile which resulted in Ritter telling Lauck to stay back and to stop
interrupting the investigation. At one point, Lauck told his daughter to get rid of
Ritter. Lauck went to the garage and came out on an ATV, driving it at a “rapid
speed” towards where Ritter was standing. Ritter interpreted this as a possible
threat, stepped closer to the tree, and “dropped the hood retention of [his] holster.”
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Tr. 129. Ritter instructed Lauck to get off the ATV and Lauck complied. Ritter
then instructed Lauck to stay on the front porch to not interrupt the investigation.
{¶4} A few minutes later, Ritter heard a noise inside the garage and saw
Lauck standing towards the rear of it. Ritter started walking to the garage to see
what Lauck was doing. As he approached, Ritter saw that Lauck was holding a
shotgun. Ritter reported that Lauck had a firearm and then sought cover. While
moving towards cover, Ritter heard the shotgun being racked. Then Ritter heard the
shotgun being fired. Both Ritter and Deputy Kris Otto (“Otto”) reported “shots
fired”. Once Ritter was in a position of cover, he pulled his duty weapon and aimed
towards the garage. Ritter saw Lauck with the shotgun and heard him racking the
shotgun again. Ritter saw that Lauck had the gun in a “high-ready position”, and,
fearing for his life, fired two shots towards Lauck. Ritter then reported that Lauck
had fired one shot and he had fired two shots. Once Ritter had fired towards Lauck,
Lauck dropped the shotgun and Ritter commanded him to walk towards him.
{¶5} By this time Otto had arrived on the scene and saw Lauck standing in
the drive with his hands up and the shotgun lying on the ground. Otto also began
yelling commands for Lauck to turn away, keep his hands up, and get on the ground.
Otto then tackled Lauck to the ground. Lauck kept repeating that he did not mean
to shoot the gun. Otto noted that Lauck appeared intoxicated and Lauck admitted
to having been drinking.
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{¶6} On July 6, 2021, the Hancock County Grand Jury indicted Lauck on
one count of felonious assault in violation of R.C. 2903.11(A)(2), a felony of the
first degree, and one count of intimidation in violation of R.C. 2921.03(A), a felony
of the third degree. Both counts contained firearm specifications. A bench trial was
held from February 14-16, 2022. On March 2, 2022, the trial court held a hearing
to announce the verdicts. The trial court found Lauck not guilty of the felonious
assault and the firearm specification. The trial court found Lauck guilty of
intimidation and the firearm specification.
{¶7} On March 29, 2022, the trial court conducted a sentencing hearing. The
trial court then sentenced Lauck to a three-year mandatory prison term for the
firearm specification and a twenty-four month prison term to be served consecutive
to the mandatory term.1 An appeal was filed from this judgment. Doc. 117. On
appeal, Lauck raises the following assignment of error.
[Lauck’s] conviction for intimidation is unsupported by sufficient
evidence in violation of the Due Process Clauses of the U.S.
Constitution and the Ohio Constitution and is against the
manifest weight of the evidence.
Sufficiency of the Evidence
{¶8} In his sole assignment of error, Lauck argues that his conviction is
unsupported by sufficient evidence.
1
The trial court noted that it was aware of this court’s “holding in State v. Wolfe, 2022-Ohio-96, but
respectfully disagrees with its conclusion and application of O.R.C. §2929.13(F)(8).” The trial court then
determined that the 24 month prison term was not a mandatory term.”
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A sufficiency analysis “‘determine[s] whether the case may go to the
jury or whether the evidence is legally sufficient to support the jury
verdict as a matter of law.’ ” State v. Thompkins, 78 Ohio St.3d 380,
386, 678 N.E.2d 541 (1997), quoting Black's Law Dictionary 1433
(6th Ed.1990). If the state fails to present sufficient evidence on every
element of an offense, then convicting a defendant for that offense
violates the defendant's right to due process of law. Id. at 386-387,
678 N.E.2d 541; see also Jackson v. Virginia, 443 U.S. 307, 316, 99
S.Ct. 2781, 61 L.Ed.2d 560 (1979).
State v. Messenger, ___ Ohio St.3d ___, 2022-Ohio-4562, ¶ 13. The question of
whether the evidence presented at trial is legally sufficient to support a verdict is a
question of law and basically questions the adequacy of the evidence. State v.
Hulbert, 3d Dist. Van Wert No. 15-19-07, 2021-Ohio-2298, ¶ 5.
An appellate court's function when reviewing the sufficiency of
the evidence to support a criminal conviction is to examine the
evidence admitted at trial to determine whether such evidence, if
believed, would convince the average mind of the defendant's guilt
beyond a reasonable doubt. * * * Accordingly, “[t]he 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.” * * * “In
deciding if the evidence was sufficient, we neither resolve evidentiary
conflicts nor assess the credibility of witnesses, as both are functions
reserved for the trier of fact.”
State v. Adkins, 3d Dist. Allen No. 1-19-71, 2020-Ohio-6799, ¶ 37 subsequently
reversed on reconsideration on other grounds (citations omitted).
{¶9} In this case, the trial court convicted Lauck of intimidation.
A) No person, knowingly and by force, by unlawful threat of harm to
any person or property, * * * shall attempt to influence, intimidate, or
hinder a public servant, a party official, or an attorney or witness
involved in a civil action or proceeding in the discharge of the
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person’s * * * duties of the public servant, party official, attorney, or
witness.
R.C. 2921.03(A). Lauck argues that the State failed to present evidence that Lauck
made an “unlawful threat of harm.” The Supreme Court of Ohio has addressed the
question of what satisfies the “unlawful threat of harm” requirement in State v.
Cress. 112 Ohio St.3d 72, 2006-Ohio-6501, 858 N.E.2d 341. In Cress, the
defendant was convicted of intimidation because he threatened a witness that if she
did not recant her statements, he would take several actions. The Court determined
that Cress made the following threats.
[A] jury could conclude that [the list Cress made] indicated that Cress
would (1) show child-protection authorities incriminating
photographs of [the witness] using illicit drugs and/or depicting her
nude, (2) provide access to [the witness’] basement to an appliance-
rental company, apparently to recover a washing machine and dryer
that were, by implication, [in the witness’] possession improperly, (3)
provide unspecified information to another rental company about [the
witness’] stereo and computer, (4) make her get rid of her pet dog and
live-in babysitter because they were not permitted by the terms of the
lease, (5) reveal to one of [the witness’] family members that his
girlfriend was having an affair, and (6) no longer permit her to use his
motor vehicle.
Id. at ¶ 10. The Court held that these actions were not sufficient to support a
conviction for intimidation of a witness. “[T]he 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.” Id. at ¶ 42. For the State to obtain a conviction
under the statute, the State must introduce evidence demonstrating the elements of
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a predicate offense. Id. at ¶ 43. The Court then reversed the conviction because
although Cress was charged with extortion, the jury returned a verdict of not guilty.
Id. at footnote 2.
{¶10} Lauck argues on his appeal that the State in this case failed to present
a predicate offense for the intimidation charge as he was found not guilty of the
felonious assault charge and no other charges were presented to the trial court.
However, this argument does not take into consideration that the Court in Cress did
not require the predicate offense to be identified in the indictment or even specified
by the State. See State v. Armstrong, 9th Dist. Summit No. 24479, 2009-Ohio-5941,
¶ 21 and State v. Ott, 11th Dist. Portage No 2007-P-0093, 2008-Ohio-4049, ¶ 26.
The determination as to whether a threat is unlawful is left to the trial court, serving
as the trier of fact, to determine. Ott, supra.{¶11} In this case, the State did not specify what the predicate offense for the
intimidation charge was. It may have been the felonious assault, but since there was
a finding of not guilty, that cannot support the conviction for the intimidation
charge. A review of the record does show that there was evidence presented of other
offenses for which Lauck could have been charged. For example, R.C. 2923.15
provides that “no person, while under the influence of alcohol * * *, shall carry or
use any firearm or dangerous ordnance.” Anyone who uses a weapon while
intoxicated could be convicted of a misdemeanor of the first degree. R.C.
2923.15(B). The evidence, viewed in a light most favorable to the State, also shows
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that Lauck acted in a manner to hamper the ability of Ritter to conduct his
investigation on multiple occasions and resulted in Ritter telling him to stay by the
porch because of his interference. This could be construed as obstructing official
business, a violation of R.C. 2921.31. Since the evidence, viewed in a light most
favorable to the State, supports potential predicate offenses, the State met its burden
of demonstrating the elements of the predicate offense.
Manifest Weight of the Evidence
{¶12} Lauck’s second issue raised in the brief is that the conviction is against
the manifest weight of the evidence.
When reviewing a judgment to determine if it is against the manifest
weight of the evidence, an appellate court “review[s] 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 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. Mendoza, 137 Ohio App.3d 336, 738
N.E.2d 822 (2000). See, also, State v. Thompkins, 78 Ohio St.3d 380,
387, 678 N.E.2d 541 (1997). A new trial should be granted only in the
exceptional case in which the evidence weighs heavily against
conviction. Thompkins at 387, 678 N.E.2d 541. Although the
appellate court acts as a “thirteenth juror,” due deference to the
findings made by the fact-finder must still be given. State v. Moorer,
3d Dist. 13–12–22, 2013-Ohio-650, 2013 WL 684735, ¶ 29.
Hulbert, supra at ¶ 23.
{¶13} Here, the record shows that the uncontradicted evidence was that for
some reason, Lauck went from cordial and cooperative with Ritter to hostile and
wanting Ritter to leave. The testimony of Ritter and Otto both indicated that Lauck
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was intoxicated. Detective Sergeant Jason Seem (“Seem”) testified that when he
searched the home, he recovered an almost empty bottle of Jack Daniels and that he
knew Lauck had been drinking that night. Seem also testified that Ritter had
reported that Lauck was “highly 24” meaning that Lauck was very intoxicated
before he was observed with the gun. The only person to testify who was present
was Ritter. His testimony, as shown above, indicated that he repeatedly told Lauck
not to interfere with the investigation and Lauck was not happy. No reasonable
explanation was provided as to why Lauck went to the gunsafe, removed the gun,
and was carrying it around. Otto testified that Lauck kept saying he did not mean
to shoot the gun. The statute only requires that a threat be made, not that the
defendant attempt to follow through on the threat. Thus, the fact that Lauck
retrieved the firearm combined with the other activities, such as driving the ATV at
high rate of speed towards Ritter in a threatening manner, provides evidence that
Lauck was trying to intimidate Ritter into leaving the home. Likewise, the firing of
the gun is not necessary for the firearm specification as the mere brandishing of the
weapon is all that is necessary. The evidence in this case does not weigh heavily
against conviction or indicate that a manifest miscarriage of justice occurred. Thus,
the conviction is not against the manifest weight of the evidence.
Intent
{¶14} Finally, Lauck argues that the State failed to prove his intent to
intimidate. The statute requires the State to prove that Lauck acted knowingly.
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(B) 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. When knowledge of the existence of a particular fact
is an element of an offense, such knowledge is established if a person
subjectively believes that there is a high probability of its existence
and fails to make inquiry or acts with a conscious purpose to avoid
learning the fact.
R.C. 2901.22(B).
{¶15} Lauck argues that he did not act knowingly because he was intoxicated
and because he did not intend to fire the weapon. “Voluntary intoxication is not a
defense, but where specific intent is a necessary element of the crime charged, the
fact of intoxication may be shown to negate this element if the intoxication is such
as to preclude the formation of such intent.” State v. Otte, 74 Ohio St.3d 555, 564,
1996-Ohio-108, 660 N.E.2d 711. However, it only negates the intent if the
defendant is “so intoxicated as to be mentally unable to intend anything”. State v.
Jackson, 32 Ohio St.2d 203, 206, 291 N.E.2d 432 (1972).
{¶16} Here, no evidence was presented to show Lauck was incapable of
forming any intent or as to his actual level of intoxication. Lauck was capable of
forming the intent to drive the ATV towards Ritter and to follow through with that
action. He formed the intent to leave the porch where he was told to remain and
followed through with that action. He formed the intent to enter the garage and to
open the gun safe and followed through with that action. Even if we were to accept
that he had no intent to fire the weapon, he clearly intended to retrieve it and carry
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it out of the garage, which he did. Given the evidence before us, the record does
not support a conclusion that Lauck was so intoxicated as to be unable to form intent.
{¶17} Lauck also argues that he had no intent to fire the shotgun and it was
an accidental discharge. As discussed above, the firing of the shotgun is not a
required element for an intimidation charge. The mere brandishing of the weapon
was enough to constitute an unlawful threat given the situation. Thus, even if we
were to agree that the discharge was accidental, the conviction for intimidation and
the firearm specification would still be supported by the evidence.
{¶18} For the reasons set forth above, the assignment of error is overruled.
Having found no errors prejudicial to the appellant in the particulars assigned and
argued, the judgment of the Court of Common Pleas of Hancock County is affirmed.
Judgment Affirmed
WALDICK and ZIMMERMAN, J.J., concur.
/hls
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