State v. Hansen , 2013 Ohio 1735 ( 2013 )

[Cite as State v. Hansen, 2013-Ohio-1735.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 13-12-42
v.
TAWNY N. HANSEN, OPINION
DEFENDANT-APPELLANT.
Appeal from Seneca County Common Pleas Court
Trial Court No. 12-CR-0084
Judgment Affirmed
Date of Decision: April 29, 2013
APPEARANCES:
Kent D. Nord for Appellant
Derek W. DeVine and Brian O. Boos for Appellee
Case No. 13-12-42
PRESTON, P.J.
{¶1} Defendant-appellant, Tawny N. Hansen, appeals the Seneca County
Court of Common Pleas’ judgment entry of conviction and sentence. For the
reasons that follow, we affirm.
{¶2} The Tiffin Municipal Court sentenced Hansen’s boyfriend, Casey
Gowitzka, to ten days in jail following his plea of no contest to possession of drug
paraphernalia. (See State’s Ex. 1, Doc. No. 1).
{¶3} On April 10, 2012, around 10:30 a.m., Hansen called the court,
advising a deputy clerk that if her boyfriend was in jail, she could not attend
secondary school. (July 17-18, 2012 Tr. at 8, 121); (State’s Ex. 1). Hansen
expressed her resentment with the court and threatened to blow up the courthouse.
(Id. at 8, 121-124). The court then reported the bomb threat to the Tiffin Police
Department. (Id. at 122-123, 137-138, 142). Later that same day, Hansen called
the Tiffin Police Department and complained about the officer who arrested her
boyfriend. (Id. at 8); (State’s Ex. 1). After speaking with Hansen, the dispatch
officer realized she was the same person who had threatened to blow up the
courthouse earlier that day. (State’s Ex. 1); (July 17-18, 2012 Tr. at 179). When
the dispatch officer advised Hansen that she could not make such threats, Hansen
stated “well if it comes down to it, I don’t care because I am already losing five
years of school because I can’t get there today.” (State’s Ex. 1). When the
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dispatch officer warned Hansen a second time not to threaten the municipal court,
she stated “[w]ell, if something doesn’t get done, I will fuckin’ do it. I don’t care,
because you guys already ruined my life. I’m schizophrenic and bipolar. I will
flip out.” (Id.). Hansen continued, “I don’t want to have to do something stupid.
And I will, because I’m fucking about to flip out.” (Id.). Thereafter, police
officers searched the courthouse, and the other governmental offices located in the
same building, for explosive devices but did not find anything. (July 16-17, 2012
Tr. at 166-168).
{¶4} Hansen was arrested and served with a copy of a complaint charging
her with one count of making a terroristic threat in violation of R.C.
2909.23(A)(c), a third degree felony, that same day. (Doc. No. 1). On April 12,
2012, Hansen appeared before the Tiffin Municipal Court and requested a
continuance of the matter. (Id.). The trial court set bond at $100,000.00
cash/surety with no 10% allowance. (Id.)
{¶5} On April 18, 2012, the State filed a motion to amend the complaint to
also include subsection (A)(2) under R.C. 2909.23, which was granted. (Id.)
{¶6} On April 20, 2012, Hansen waived her right to a preliminary hearing
and agreed to have this matter bound over to the Seneca County Common Pleas
Court. Hansen’s bond was continued. (Id.).
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{¶7} On May 16, 2012, Hansen’s attorney filed a notice of appearance,
along with a demand for discovery and a request for a bill of particulars. (Doc.
No. 2).
{¶8} On May 23, 2012, the Seneca County Grand Jury indicted Hansen on
one count of making a terroristic threat in violation of R.C. 2909.23(A)(1)(c),(2),
(C), a third degree felony. (Doc. No. 3).
{¶9} On May 24, 2012, the trial court set bond at $100,000.00 with no 10%
allowance. (Doc. No. 7).
{¶10} On June 6, 2012, the State filed a bill of particulars and its discovery
response. (Doc. Nos. 8-9). On that same date, Hansen entered a plea of not guilty
at arraignment, and the trial court modified her bond to $50,000.00, with no 10%
allowance. (Doc. No. 11). On June 26, 2012, the State filed an amended bill of
particulars. (Doc. No. 14).
{¶11} On July 11, 2012, Hansen filed a motion in limine to exclude all
evidence of statements she made pertaining to the bomb threats other than those
she allegedly made to the Tiffin Municipal Court deputy clerk. (Doc. No. 26).
{¶12} On July 12, 2012, the Tiffin Municipal Court Judge Mark Repp filed
a motion to quash a subpoena duces tecum Hansen served on him, which
requested a copy of the court’s security plan. (Doc. No. 27).
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{¶13} On July 13, 2012, Hansen filed a motion in limine to exclude
statements she made at the time of her arrest. (Doc. No. 30). On this same date,
the trial court granted Judge Repp’s motion to quash. (Doc. No. 33).
{¶14} On July 16, 2012, Hansen filed a motion for discharge, alleging that
the State violated her speedy trial rights under R.C. 2945.73. (Doc. No. 34).
{¶15} On July 16-17, 2012, a jury trial was held. Prior to the jury verdict,
Hansen made a motion for mistrial, which was denied. (July 16-17, 2012 Tr. at
232-242). Thereafter, the jury found Hansen guilty. (Doc. No. 41). On July 17,
2012, Hansen filed a motion for acquittal pursuant to Crim.R. 29(A). (Doc. No.
35). On this same day, the trial court filed entries overruling Hansen’s two
motions in limine, motion for discharge, and motion for acquittal. (Doc. Nos. 36,
38). The trial court also filed its entry of conviction and ordered a pre-sentence
investigation report (“PSI”). (Doc. No. 42).
{¶16} On September 11, 2012, the trial court sentenced Hansen to 18
months imprisonment. The trial court filed its judgment entry sentence on
September 19, 2012. (Doc. No. 50).
{¶17} On October 11, 2012, Hansen filed her notice of appeal. (Doc. No.
55). Hansen now appeals raising eight assignments of error for our review. We
elect to address Hansen’s assignments of error out of the order presented in her
brief and to combine her assignments of error where appropriate.
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Assignment of Error No. IV
The trial court erred when it denied Appellant’s Motion for
Discharge pursuant to ORC §2945.73.
{¶18} In her fourth assignment of error, Hansen argues that the trial court
erred by denying her motion for discharge since the State failed to prosecute her
within the 270 days allowed by R.C. 2945.73. In particular, Hansen argues that
the trial court erred by tolling time from the date of the indictment, May 23, 2012,
until the day the State filed its discovery response, June 6, 2012. Hansen argues
that defense counsel inappropriately filed the discovery motion prior to
arraignment; and therefore, the tolling of time should have commenced at the
earliest on the date of arraignment.
{¶19} R.C. 2945.71(C)(2) provides: “[a] person against whom a charge of
felony is pending [s]hall be brought to trial within two hundred seventy days after
a person’s arrest.” “[E]ach day during which the accused is held in jail in lieu of
bail on the pending charge shall be counted as three days.” R.C. 2945.71(E). The
speedy trial provisions in R.C. 2945.71 are coextensive with constitutional speedy
trial provisions. State v. King, 70 Ohio St.3d 158, 161 (1994), citing State v.
O’Brien, 34 Ohio St.3d 7 (1987).
{¶20} A speedy trial claim involves a mixed question of law and fact for
purposes of appellate review. State v. Masters, 172 Ohio App.3d 666, 2007-Ohio-
4229, ¶ 11 (3d Dist.), citing State v. High, 143 Ohio App.3d 232, 242 (7th
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Dist.2001). Accordingly, a reviewing court must give due deference to the trial
court’s findings of fact if they are supported by competent, credible evidence but
will independently review whether the trial court correctly applied the law to the
facts of the case. Masters at ¶ 11.
{¶21} The record indicates that Hansen was arrested on April 10, 2012 and
held in jail until the trial commenced on July 16, 2012, which is 97 days—seven
days beyond the 90 days permitted under R.C. 2945.71(C)(2), (E). (Doc. No. 1);
(July 17, 2012 Tr. at 19). The defense filed a motion requesting a bill of
particulars and discovery on May 16, 2012, which was prior to the indictment date
of May 23, 2012. (Doc. Nos. 2-3). The trial court tolled time for the bill of
particulars and discovery requests from May 23, 2012, the date of indictment, until
June 6, 2012 when the State filed its responses, for a total of 14 days. (Doc. Nos.
8-9). Therefore, under the trial court’s calculations, Hansen was brought to trial in
83 days, well within the time required under statute.
{¶22} Hansen argues that the motion she filed on May 16, 2012 for a bill of
particulars and discovery should not have tolled time since it was prematurely
filed under Crim.R. 16(M). That provision provides that “[a] defendant shall
make his demand for discovery within twenty-one days after arraignment or seven
days before the date of trial, whichever is earlier, or at such reasonable time later
as the court may permit.” (Emphasis added). Nothing in Crim.R. 16(M)
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technically prohibits defense counsel from filing a discovery motion prior to
arraignment. The State still responded to the motion, which delayed the trial. R.C.
2945.72(E). The discovery motion/request for bill of particulars became a
pending motion when the indictment was filed. Therefore, the trial court did not
err by tolling days subsequent to the date of indictment for the pending discovery
motion/request for bill of particulars. Consequently, Hansen was brought to trial
within the 90-day deadline imposed by R.C. 2945.71(C)(2), (E), and the trial court
did not err in denying the motion for discharge.1
{¶23} Hansen’s fourth assignment of error is, therefore, overruled.
Assignment of Error No. I
The trial court erred when it denied Appellant’s Motion in
Limine to prohibit the instruction [sic] of additional phone calls
made by Appellant to the Court.
Assignment of Error No. II
The trial court erred when it denied Appellant’s Motion in
Limine to prohibit the introduction of the recording of
Appellant at the time of her arrest.
{¶24} In her first and second assignments of error, Hansen argues that the
trial court erred by denying her motions in limine to exclude from evidence a
taped recording of her phone call to Lt. Michelle Craig and a taped recording of
statements she made during her arrest. Hansen argues that the statements were
1
We note that time was also tolled for at least two more days for Hansen’s motions in limine filed on July
11 and 13, 2012. (Doc. Nos. 26, 30). R.C. 2945.72(E); State v. Sanchez, 110 Ohio St.3d 274, 2006-Ohio-
4478, ¶ 20-27.
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irrelevant since she was not charged for any statements she made to Lt. Craig or
statements she made during arrest. She also argues that identity was not at issue
since she was willing to stipulate to that at trial. Hansen further argues that
admitting the recordings negatively influenced the jury’s feelings against her.
{¶25} A motion in limine is a request for the court to limit or exclude
certain evidence which the movant believes is improper, which is made in advance
of the actual presentation of the evidence and usually prior to trial. State v. Black,
172 Ohio App.3d 716, 2007-Ohio-3133, ¶ 11 (3d Dist.), citing State v. Winston, 71
Ohio App.3d 154, 158 (2d Dist.). “The motion asks the court to exclude the
evidence unless and until the court is first shown that the material is relevant and
proper.” Black at ¶ 11. Since a trial court’s decision on a motion in limine is a
ruling to exclude or admit evidence, we review the trial court’s decision for an
abuse of discretion that amounted to prejudicial error. Id., citing State v. Yohey,
3d Dist. No. 9-95-46 (Mar. 18, 1996), citing State v. Graham, 58 Ohio St.2d 350(1979), and State v. Lundy, 41 Ohio App.3d 163 (1st Dist.1987). An abuse of
discretion constitutes more than an error of judgment; rather, it implies that the
trial court acted unreasonably, arbitrarily, or unconscionably. State v. Adams, 62
Ohio St.2d 151, 157 (1980).
{¶26} The trial court ruled on the motions in limine just prior to the start of
the trial. Defense counsel represented that the motions in limine sought to exclude
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statements Hansen made to the “Acting Chief” of the Tiffin Police Department,
confirming that she made the initial bomb threat to the Tiffin Municipal Court and
Hansen’s statement “I don’t care I will do it.” (July 17, 2012 Tr. at 8). Defense
counsel also indicated that Hansen called the police department a second time
confirming that she, in fact, made the threats and that she was going to go through
with the threat. (Id. at 8-9). Finally, defense counsel indicated that the
prosecution also intended to introduce six minutes of a recording from Hansen’s
arrest, though he was not sure for what purpose. (Id. at 9). Defense counsel
argued that the statements were irrelevant since Hansen was only charged for
statements she made during the 10:30 a.m. phone call to the courthouse, not any
subsequent statements. (Id.). Defense counsel argued that the statements were
highly prejudicial and harmful to his client. (Id.).
{¶27} The State, on the other hand, argued that the subsequent statements
were admissible to show identity and motive or purpose. (Id. at 9-10). The State
argued that the subsequent statements were really just a continuation of the initial
threat, and Hansen stated therein “[i]f something doesn’t get done, I need my
boyfriend out of jail today.” (Id. at 10). The State also pointed out that it was not
required to stipulate to identity, and if even with the stipulation, it still had the
burden of proving identity. (Id.).
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{¶28} After hearing the aforementioned, the trial court conditionally denied
the motions in limine subject to hearing more testimony later in trial. (Id. at 11).
We cannot conclude that the trial court abused its discretion by denying the
motions in limine. From what was represented to the trial court, the statements
were admissible for purposes of proving identity, motive or purpose, and were,
otherwise, admissions by Hansen. Hansen’s statements were also relevant to show
that she “cause[d] a reasonable expectation or fear of the imminent commission of
the specified offense” as charged in the indictment. R.C. 2909.23(A)(2). The fact
that Hansen wanted to stipulate to identity does not mean that the State had to
accept the stipulation, nor does it mean that the trial court was required to exclude
this otherwise probative evidence. State v. Collins, 4th Dist. No. 1021, *2-3 (Apr.
21, 1980); State v. Wilson, 9th Dist. No. 92CA005396, *25 (Oct. 12, 1994).
Therefore, the trial court did not abuse its discretion by denying the motions in
limine.
{¶29} Hansen’s first and second assignments of error are, therefore,
overruled.
Assignment of Error No. III
The trial court erred when it granted the Motion to Quash the
Appellant’s supoena [sic] duces tecum whereby she requested
the security plan for the Tiffin Municipal Court adopted under
Rule of Superintendence 9(A).
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{¶30} In her third assignment of error, Hansen argues that the trial court
erred by granting the motion to quash her subpoena duces tecum seeking the Tiffin
Municipal Court security plan.
{¶31} A subpoena may be used to command a person to produce in court
books, papers, documents, and other objects. Crim.R. 17(C). However, the trial
court upon motion of a party may quash or modify the subpoena if compliance
would be unreasonable or oppressive. Id. An appellate court applies an abuse of
discretion standard when reviewing a trial court’s decision to quash a subpoena.
State v. Blair, 3d Dist. No. 9-12-14, 2013-Ohio-646, ¶ 44, citations omitted.
{¶32} Upon review we cannot conclude that the trial court abused its
discretion by granting the motion to quash. To begin with, the security plan is a
sensitive document whose contents should be safeguarded. Hansen argues that the
court security plan was relevant because court personnel’s actions with respect to
the plan show how serious they thought Hansen’s threats were. The evidence
presented at trial, however, demonstrated that the security plan was in draft form
and had not been formally adopted by the court. (July 16-17, 2012 Tr. at 157-
158). In fact, when defense counsel asked the deputy clerk who received the
threatening phone call about the court security plan, she indicated that she was not
aware of such a plan. (Id. at 134). Beyond that, the trial court permitted defense
counsel to review the security plan in chambers and to question court personnel
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and Judge Repp about the security plan. (Id. at 15-17, 102-109, 134, 157-158,
174-175). Defense counsel was able to examine the seriousness of Hansen’s
threats through cross-examination and the fact that the court security plan was not
admissible in evidence did not hinder this ability.
{¶33} Hansen’s third assignment of error is, therefore, overruled.
Assignment of Error No. VIII
The trial court erred when it denied Appellant’s Motion for
Acquittal pursuant to Criminal Rule 29.
Assignment of Error No. VI
The conviction in the trial court should be reversed because it is
against the manifest weight of the evidence and because evidence
supporting it was insufficient as a matter of law to prove the
conviction beyond a reasonable doubt.
{¶34} In her eighth assignment of error, Hansen argues that the trial court
erred in denying her Crim.R. 29(A) motion for acquittal. In particular, Hansen
argues that there was no evidence that anyone actually took her threat seriously;
and therefore, there was insufficient evidence that she created a reasonable
expectation or fear of the imminent commission of the offense. In her sixth
assignment of error, Hansen argues that her conviction was against the manifest
weight of the evidence and not supported by sufficient evidence for the same
reason cited in her eighth assignment of error.
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{¶35} “Pursuant to Crim. R. 29(A), a court shall not order an entry of
judgment of acquittal if the evidence is such that reasonable minds can reach
different conclusions as to whether each material element of a crime has been
proved beyond a reasonable doubt.” State v. Bridgeman, 55 Ohio St.2d 261(1978), syllabus. The Bridgeman standard “must be viewed in light of the
sufficiency of evidence test[.]” State v. Foster, 3d Dist. No. 13-97-09, *2 (Sept.
17, 1997).
{¶36} When reviewing the sufficiency of the evidence, “[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.” State v. Jenks, 61 Ohio St.3d 259(1981), paragraph two of the syllabus.
{¶37} On the other hand, in determining whether a conviction is against the
manifest weight of the evidence, a reviewing court must 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 [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 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175
(1st Dist.1983). A reviewing court must still allow the trier of fact appropriate
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discretion on matters relating to the weight of the evidence and the credibility of
the witnesses. State v. DeHass, 10 Ohio St.2d 230, 231 (1967).
{¶38} Laura Bouillon, a deputy clerk at the Tiffin Municipal Court,
testified that her primary responsibilities include answering the phones, waiting on
the public, and docketing court proceedings. (July 16-17, 2012 Tr. at 119).
Bouillon testified that, around 10:30 a.m. on April 10, 2012, she received a
threatening phone call at the court. (Id. at 119-120, 123). Bouillon testified that
the individual on the phone first asked her whether Casey Gowitzka had to go to
jail, and she informed the caller that he was sentenced to 10 days in jail. (Id. at
120-121). According to Bouillon, the caller became agitated and stated, “No,
that’s not okay. Do you know how much school costs? No.” (Id.). Bouillon
asked the caller if she had any more questions regarding the case, and the caller
said “the officer was stupid.” (Id.). At that point, Bouillon again asked the caller
if she had any other questions about the case, and the caller stated, “No. I’m just
gonna come and blow the courthouse up” and hung up the phone. (Id. at 121-
122). Bouillon testified that, after the caller made the threat, she informed her
supervisor because she thought it was a serious allegation. (Id. at 122-123).
Bouillon testified that later that day someone from the Tiffin Police Department
questioned her about the phone call. (Id. at 123).
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{¶39} On cross-examination, Bouillon testified that Hansen sounded
agitated on the phone about some financial issues related to Gowitzka going to
jail. (Id. at 124). She testified that she executed a written statement concerning
the phone call within a half-hour after it occurred. (Id.). Bouillon testified that
Hansen did not make any conditional threats, did not indicate there was a bomb in
the building, and did not indicate what the bomb looked like. (Id. at 127-128).
Bouillon further testified that she informed her supervisor, Victoria Comer,
immediately after the caller hung up. (Id. at 128). She testified that she continued
her normal duties after informing her supervisor, that a court hearing took place
shortly after the phone call, and that she did not speak to Judge Repp about the
phone call. (Id. at 129-130). Bouillon identified defendant’s exhibit A as a
certified copy of a municipal court journal entry in Abby McClelland’s case,
which was time stamped 10:48 a.m. on April 10, 2012. (Id. at 131-132). Bouillon
testified that, after the bomb threat, court continued as normal, was not evacuated
or closed, and she did not personally leave or ask to leave the court. (Id. at 133).
Bouillon testified that, if she believed there was a bomb in the building about to
explode, she would have left the building. (Id.). She testified that she was not
aware of any court security plan, and that if something like this comes up, they
usually contact the police department, which is downstairs in the same building.
(Id. at 134). Bouillon identified defendant’s exhibit B as a copy of the court
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docket for April 10, 2012, which reflected a total of 33 cases for the day, which
the court heard even after the bomb threat. (Id. at 134-135). On re-direct
examination, Bouillon testified that she had never received a bomb threat before
this one, and she does not investigate the threats; but instead, she calls the police.
(Id. at 137). She testified that she spoke with Officer Bryan Bryant about the
incident, and the police department searched the building for explosives. (Id. at
138).
{¶40} Judge Mark E. Repp of the Tiffin Municipal Court testified that, on
the morning of April 10, 2012, he was presiding over arraignments. (Id. at 140-
141). Judge Repp testified that during one of the arraignments he imposed a jail
sentence upon Gowitzka, and that later that morning the court clerk, Comer,
informed him that they received a phone call threatening to blow up the
courthouse. (Id. at 141-142). Judge Repp testified that it was the first bomb threat
the court had received during his ten years of service on the bench. (Id. at 142).
He testified that he did not feel qualified to determine whether the threat was
imminent or not, so he directed Comer to inform the Tiffin Police Department.
(Id.). Judge Repp further testified that Lt. Craig and a couple uniformed officers
searched the courthouse and ascertained that there was no apparent threat, so he
continued court proceedings. (Id. at 143).
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{¶41} On cross-examination, Judge Repp testified that the bomb threat was
received sometime between 10:30 a.m. to 11:00 a.m., after arraignments were
finished. (Id. at 144). Judge Repp identified defendant’s exhibit A as a journal
entry for Ms. McClelland in an OVI case, which was time-stamped 10:48 a.m. on
April 10, 2012. (Id. at 144-145). Judge Repp testified that he could not recall the
exact time of the bomb threat; however, he recalled he was on the bench when
Comer informed him about the phone call. (Id. at 145-146). He testified that,
other than the delay for the police search, court proceedings continued throughout
the rest of the day. (Id. at 154). Judge Repp testified that he did not evacuate or
close the court after the bomb threat, which he had the authority to do. (Id.). He
testified that he was not aware of any other governmental entities in the building
that evacuated or closed. (Id. at 156). Judge Repp further testified that he has
been working on a court security plan, which addresses bomb threats; however,
the plan is only in draft form. (Id. at 157). Judge Repp testified that court was
delayed approximately 10 minutes for the police to check for explosives. (Id. at
159).
{¶42} Tiffin Police Officer Bryan Bryant testified that he had training and
experience with identifying explosive devices from his time in the military and in
the police department. (Id. at 162-163). Officer Bryant testified that he received a
dispatch to respond to the police department to investigate a bomb threat against
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the Tiffin Municipal Court. (Id. at 164). He testified that, when he returned to the
police department, the dispatcher informed him that there had been a bomb threat
against the court, and Lieutenant Craig, also seated in the dispatch, was on the
phone talking with the person who made the threat. (Id.). Bryant testified that,
after Lt. Craig finished the phone conversation, she asked him to speak with the
deputy clerk who spoke with the person making the threat. (Id.). Bryant testified
that Lt Craig did not inform him of the caller’s identity but informed him that it
was a girl calling from outside of Tiffin inquiring about what happened to a
boyfriend or husband. (Id. at 165). Bryant testified that he then spoke with Laura
Bouillon who informed him of the nature the threats. (Id.). He testified that,
thereafter, Lt. Craig and he informed Judge Repp that they were going to follow
protocol and search room by room for any suspicious objects, bags, or packages.
(Id. at 166). Bryant testified that it is easier to check for such items when the
people who are familiar with the building are present so they can identify their
property as opposed to a suspicious item. (Id. at 167). Bryant testified that the
search took about 10 to 15 minutes, and, after conducting the search, he was
satisfied that there was no explosive devices in the court. (Id. at 167-168). Bryant
testified that he also searched the front hall, the mayor’s office, the city
administrator’s office, and the police department as an extra precaution. (Id. at
168).
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{¶43} On cross-examination, Bryant testified that the court remained open,
and he did not notify any other law enforcement agencies since no device was
found. (Id. at 168-169). He testified that the police department and the
courthouse are housed in the same building. (Id. at 169). Bryant testified that no
other department housed in the building was evacuated, though he informed each
department of the threat. (Id. at 170). On re-direct, Bryant testified that there
would be no point to conducting a search if he did not believe there could be an
explosive device. (Id.). On re-cross, Bryant testified that the search was part of
their protocol. (Id. at 171). As a result of a juror question, Bryant also explained
that a government building could not be shut down on every bomb threat; rather,
their protocol is to do a search first to determine if there are any suspicious
packages. (Id. at 171-172). Bryant testified, however, that in the event a bomb is
going to go off imminently, they do not have the ability to do a search. (Id. at
173).
{¶44} Tiffin Police Department Lieutenant Michelle Craig testified that, on
April 10, 2012, she was the Acting Chief of Police and working the day shift. (Id.
at 176-178). Lt. Craig testified that the dispatcher informed her that they were
sending Officer Bryant to the Tiffin Municipal Court because a female subject
called the court, was upset about her boyfriend being incarcerated, and made a
bomb threat. (Id. at 178-179). She testified that shortly thereafter the dispatcher
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informed her that they had a female on the phone complaining about the police
officer’s actions that past Friday. (Id. at 179). Lt. Craig testified that, after
listening to the conversation, it became clear that the female caller was the same
person who made the bomb threat. (Id.). Lt. Craig identified State’s Ex. 1 as a
recording of the phone conversation, which was played for the jury. (Id. at 180-
181). Lt. Craig testified that, after hearing the conversation, she went up to the
courtroom and asked Judge Repp if they could do a check of the area for
explosives. (Id. at 182). She testified that they do not make a call to evacuate
unless and until they find a suspicious device. (Id.). Lt. Craig testified that they
did not find any device, but they did advise the city administrator’s office, the
mayor’s office, and the fire chief of the bomb threat. (Id. at 182-183). Lt. Craig
testified that the precautions they took were a direct result of the bomb threat, and
they took those precautions immediately after Hansen ended the phone call with
the dispatcher. (Id. at 183).
{¶45} Lt. Craig testified that her secondary responsibility after conducting
the search of the court was to ensure Hansen’s safety since she made a threat of
killing herself during her conversation with the dispatcher. (Id. at 184). To that
end, she determined from the traffic stop report that Hansen lived in Bellevue and
contacted the Bellevue Police Department to see if they would check on Hansen,
which they agreed to do. (Id. at 184). Lt. Craig also informed the Bellevue Police
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Department that she would put together an affidavit to present to a judge in
Bellevue to search Hansen’s residence to make sure there were no explosive
devices or materials for bombs in the residence. (Id. at 184-185). Lt. Craig
testified that, about 30 to 45 minutes after talking with the Bellevue Police
Department, Hansen called the Tiffin Police Department a second time irate that
they sent the Bellevue police to her house. (Id. at 185). Lt. Craig testified that this
phone call was also recorded, and she identified State’s Ex. 2 as a recording of the
same, which was played for the jury. (Id. at 186-188). Lt. Craig testified that after
that conversation, she worked with the Bellevue Police Department to obtain a
search warrant to search Hansen’s residence. (Id. at 188). She further testified
that she took this precaution, along with searching the courthouse for explosives,
in light of Hansen’s “erratic behavior,” Hansen’s threats toward others and herself,
and because Hansen did not back down from her initial threat. (Id. at 188-189).
On cross-examination, Lt. Craig testified that she never asked Hansen the location
of the bomb, how it would be detonated, what it would look like, or if Hansen was
familiar with the courthouse building. (Id. at 190-191). Lt. Craig testified that she
never called the ATF, FBI, or bomb squad nor evacuated the courthouse since they
did not locate any explosive device. (Id. at 192-194). She testified that they did
not do any additional searches after Hansen called the police department a second
time. (Id. at 196).
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{¶46} Tiffin Police Detective David Horn testified that Lt. Craig informed
him of the threat made to the Tiffin Municipal Court, and thereafter, he identified
the subject and typed up a complaint and arrest warrant. (Id. at 202-204).
Detective Horn testified that they obtained a search warrant because the threats
were taken seriously, though they did not find any materials that could be used for
explosives in Hansen’s residence. (Id. at 204). Detective Horn testified that
Hansen was not home when they entered her residence, though she returned while
they were executing the search warrant so they arrested her at that time. (Id. at
204-205). Detective Horn testified that Hansen was very upset and advised that
she had called the court and had everything already worked out. (Id. at 205).
Detective Horn testified that the arrest was recorded and identified State’s Ex. 3 as
a copy of the same, which was played for the jury. (Id. at 205-206). He further
testified that, during the arrest, Hansen indicated that she shared another residence
with her grandmother, so they obtained an additional search warrant for that
residence. (Id. at 209). Detective Horn testified that none of the search warrants
produced any explosive devices. (Id. at 210). He identified the defendant as the
individual he arrested on April 10, 2012. (Id.). On cross-examination, Detective
Horn testified that he was not involved in the search of the courthouse. (Id. at
211-212). He testified that he did not call the ATF, did not cord off areas around
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the court, did not tell people to leave the building, and did not leave the building
himself. (Id. at 212-213).
{¶47} Thereafter, the State and defense both rested. (Id. at 244). The
defense made a motion for acquittal under Crim.R. 29(A), which the trial court
denied, and the jury returned a guilty verdict. (Id. at 245-246); (Doc. No. 41).
{¶48} Upon review of the foregoing testimony and evidence admitted at
trial, we conclude that Hansen’s conviction was supported by sufficient evidence
and not against the manifest weight of the evidence.
{¶49} Hansen was convicted on one count of making a terroristic threat in
violation of R.C. 2909.23(A)(1)(c), (2), which provides:
(A) No person shall threaten to commit or threaten to cause to be
committed a specified offense when both of the following apply:
(1) The person makes the threat with purpose to * * * (c) [a]ffect
the conduct of any government by the threat or by the specified
offense.
***
(2) As a result of the threat, the person causes a reasonable
expectation or fear of the imminent commission of the specified
offense.
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{¶50} Hansen called the Tiffin Municipal Court and became irate after
learning that Judge Repp ordered her boyfriend to serve ten days in jail, which
would negatively impact her ability to attend school. Hansen’s subsequent phone
calls to the Tiffin Police Department demonstrated her purpose to affect the
conduct of the municipal court, a governmental entity; namely, to secure the
release of her boyfriend from jail and her car from the impound lot. Hansen stated
that she needed her car to attend school and her boyfriend needed to make repairs
to the car so she could drive it to school. Hansen’s subsequent conversations with
law enforcement caused a reasonable expectation or fear that Hansen would carry
out the bomb threat. Hansen never backed down from her initial threats, even
when given the opportunity to do so, and even insisted that she would carry out the
bomb threat if her boyfriend was not released from jail. Hansen stated she was
bipolar and schizophrenic and that she did not care what would happen to her
since the police and the courts had already ruined her life. A rational juror could
have concluded that Hansen created a reasonable expectation or fear of the
commission of the bombing in light of Hansen’s comments to law enforcement
and her belligerent behavior.
{¶51} Finally, Hansen argues that her conviction is against the manifest
weight of the evidence because there was not a reasonable expectation or fear that
she would carry out her threat. We disagree. During Hansen’s phone calls to the
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Tiffin Police Department, she repeatedly made statements indicative of her intent
to carry out the bomb threat. She stated multiple times in expletives that she
would “do it” and did not care what happened to her since her life was already
ruined. Hansen stated that she was having a mental breakdown and “losing it”
during these phone conversations, even threatening harm against herself. In light
of the severity of Hansen’s statements and actions during these phone
conversations, we cannot conclude that the jury lost its way finding that Hansen
created a reasonable expectation or fear of the commission of the offense.
{¶52} Hansen’s eighth and sixth assignments of error are, therefore,
overruled.
Assignment of Error No. V
Tawney N. Hansen was deprived of her rights to effective
assistance of counsel by her counsel, in contravention of the
Sixth and Fourteenth Amendments to the United States
Constitution, and Article One, Section Ten of the Ohio
Constitution, which severely prejudiced the rights of Appellant
and did not further the administration of justice.
{¶53} In her fifth assignment of error, Hansen argues that trial counsel was
ineffective during voir dire when he failed to inquire if any potential jurors were
related to law enforcement. Hansen argues that a juror, Ms. Vallery, identified
herself as being married to “Shawn,” who is Detective Shawn Vallery of the Tiffin
Police Department. Detective Vallery, according to Hansen, works directly with
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two of the State’s witnesses, Detective Horn, the arresting officer, and Lt.
Michelle Craig, the acting police chief.
{¶54} A defendant asserting a claim of ineffective assistance of counsel
must establish: (1) the counsel’s performance was deficient or unreasonable under
the circumstances; and (2) the deficient performance prejudiced the defendant.
State v. Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466
U.S. 668, 687, 104 S.Ct. 2052 (1984).
{¶55} Hansen has failed to demonstrate ineffective assistance of counsel.
Ms. Vallery introduced herself during voir dire as follows: “I’m Lori. I work at
Tiffin Mercy and I’m a Tiffin resident. I have three children and I am married to
Shawn.” (July 16-17, 2012 Tr. at 55). There is no indication in the record that
Shawn Vallery is a Tiffin Police Detective, or that Lori is married to the same
“Shawn” who is allegedly a detective. Besides that, how an attorney conducts voir
dire is a matter of trial strategy, which a reviewing court should not “second-
guess.” State v. Reynolds, 3d Dist. No. 1-02-70, 2003-Ohio-2067, ¶ 20-21,
citations omitted (trial counsel was not ineffective for failing to exercise
peremptory challenges on two jurors who were related to law enforcement
officers). All the prospective jurors were asked whether they had a personal
interest in the outcome of the case, and no one responded affirmatively. (July 16-
17, 2012 Tr. at 37). All of the prospective jurors were also asked if they could not
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base their decision on the facts and the law, and no one responded affirmatively.
(Id. at 40). For these reasons, Hansen has failed to demonstrate ineffective
assistance of trial counsel.
{¶56} Hansen’s fifth assignment of error is, therefore, overruled.
Assignment of Error No. VII
The trial court erred when it denied Appellant’s Motion for
Mistrial.
{¶57} In her seventh assignment of error, Hansen argues that the trial court
erred by denying her motion for mistrial. Hansen argues she was entitled to a
mistrial because the trial court allowed the State to play recordings of her phone
call with Lt. Craig and her arrest to the jury. Hansen argues that these recordings
were irrelevant since they occurred after the statements giving rise to the crime
and prejudicial since they made her look mentally unstable.
{¶58} “Mistrials need be declared only when the ends of justice so require
and a fair trial is no longer possible.” State v. Franklin, 62 Ohio St.3d 118, 127
(1991). Whether to grant a mistrial is within the sound discretion of the trial court.
State v. Brown, 100 Ohio St.3d 51, 2003-Ohio-5059, ¶ 42, citing State v. Glover,
35 Ohio St.3d 18, 19 (1988).
{¶59} At the end of the trial, Hansen made a motion for a mistrial after the
trial court allowed the recordings of her phone conversation with Lt. Craig and her
arrest to be played for the jury. (July 16-17, 2012 Tr. at 232). Counsel argued
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that the phone conversation with Lt. Craig was irrelevant since it occurred after the
allegedly threatening statements were made to the municipal court. (Id. at 232-
233). Counsel argued that any subsequent threats made by Hansen were separate,
unindicted offenses for which she could not be convicted. (Id. at 236). Counsel
argued that the recording of Hansen’s arrest was “brought into evidence to
basically make her look like a crazy schizophrenic, psychotic bitch and, therefore,
should be convicted.” (Id. at 233).
{¶60} Upon review, we conclude that the trial court did not abuse its
discretion by denying the motion for a mistrial. We have already found that
State’s exhibits one and two, recordings of Hansen’s phone calls to the Tiffin
Police Department, were relevant to show identity, purpose or motive, and an
essential element of the offense—that Hansen “cause[d] a reasonable expectation
or fear of the imminent commission of the specified offense.” R.C.
2909.23(A)(2). Therefore, the trial court did not abuse its discretion by denying
the motion for mistrial based on the admission of these exhibits.
{¶61} State’s exhibit three was a recording of statements made by Hansen
during her arrest, including admissions to making the threats to the municipal
court. While many of Hansen’s statements and her behavior were potentially
prejudicial, the trial court specifically instructed the jury that State’s exhibit three
“may only be used for purposes of determining the identity of the individual that
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committed the alleged offense and for * * * any incriminating statements that may
have been regarding the threat against the Tiffin Municipal Court[.]” (July 16-17,
2012 Tr. at 230-231). The trial court further instructed that “[a]ny other
statements made in the tape recording should be disregarded in this case.” (Id. at
231); (Id. at 247, 251-252). The jury is presumed to have followed the
instructions provided by the trial court. State v. Twyford, 94 Ohio St.3d 340, 356
(2002), citing State v. Loza, 71 Ohio St.3d 61, 75 (1994). Accordingly, we are not
persuaded that Hansen was deprived a fair trial as a result of the admission of
State’s exhibit three, and the trial court did not abuse its discretion by denying her
motion for a mistrial.
{¶62} Hansen’s seventh assignment of error is, therefore, overruled.
{¶63} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ROGERS and SHAW, J.J., concur.
/jlr
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