State v. Wright , 2014 Ohio 1073 ( 2014 )

[Cite as State v. Wright, 2014-Ohio-1073.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100010
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DERRICK ALFONZO WRIGHT
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-570665
BEFORE: Celebrezze, P.J., Keough, J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: March 20, 2014
ATTORNEY FOR APPELLANT
Thomas A. Rein
940 Leader Building
526 Superior Avenue
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Aleksandra Chojnacki
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., P.J.:
{¶1} Defendant-appellant, Derrick Alfonzo Wright, appeals from his conviction
for menacing by stalking. After a careful review of the record and relevant case law, we
affirm appellant’s conviction.
I. Procedural History
{¶2} On February 7, 2013, a three-count indictment was filed against appellant,
charging him with having a weapon while under disability in violation of R.C.
2923.13(A)(3), a felony of the third degree; carrying a concealed weapon in violation of
R.C. 2923.12(A)(2), a felony of the fourth degree; and menacing by stalking in violation
of R.C. 2903.211(A)(1), a felony of the fourth degree.
{¶3} At his arraignment, appellant entered pleas of not guilty, and the case
proceeded to a jury trial on May 29, 2013. On May 30, 2013, the jury returned a verdict
of not guilty as to the counts of having a weapon while under disability and carrying a
concealed weapon. However, the jury found appellant guilty of menacing by stalking.
On May 31, 2013, the trial court sentenced appellant to an 18-month term of
imprisonment.
II. Substantive Facts
{¶4} Lashawn Pate, a bus driver for the Greater Cleveland Regional Transit
Authority (“RTA”), testified that in August 2012, she was assigned to the Health Line,
which travels through downtown Cleveland, Ohio. Pate testified that a passenger, later
identified as appellant, begain riding her bus sometime between August and September
2012. During one bus ride in September 2012, appellant began complimenting Pate
about her hair and fragrance. During the conversation, appellant asked Pate to give him
a call, and she responded that she was not interested. Pate stated that, following that
incident, appellant began taking the bus every day.
{¶5} Appellant’s advances towards Pate culminated during an incident in
November 2012 when he boarded the bus ranting aggressively. Among other things,
appellant stated, “these mother fuckers are trying to kill me, * * * they can’t take down
the beast.” Soon appellant’s statements turned religious and he began telling Pate he was
“the Messiah.” Further, appellant told Pate that she was the eastern star and the devil
and that she should “repent at Jesus’s knee.” Appellant asked Pate if she believed in God,
and when she responded affirmatively, he told her that she was not a believer. At that
point, appellant pressed his body against Pate and stated, “[w]ell since you believe in
God, let me ask you, what would you do if I shot you in your head?” Pate responded that
she would not die because she is a child of God. In turn, appellant stated, “[g]ood
answer, because had you told me that you was going to die, you would have died today.”
Pate testified that at some point during this conversation, appellant had unzipped his
jacket and pulled it back in a way that revealed he was carrying a gun.
{¶6} Pate testified that moments after appellant’s threat, he grabbed her right arm
and told her she was coming with him. When she responded that she would not leave the
bus, appellant stated, “No. Come on, you are coming with me.” During appellant’s
incessant demands that Pate leave the bus, he revealed that he had been “watching her.”
Appellant stated that he knew when she goes to work, when she leaves, and where she
parks her car. Ultimately, appellant left the bus. However, before exiting he stated,
“I’m going to get you. You mine.”
{¶7} Pate testified that the incident terrified her and that she immediately made an
incident report and switched bus routes in an effort to avoid appellant. Nevertheless, in
January 2013, while picking up passengers on Euclid Avenue, appellant saw Pate and
stated, “There’s my baby. I’ve been looking for you. I haven’t seen you. I’ve been
riding all these buses looking for you and I finally found you.” Following this
conversation, Pate made a second incident report.
{¶8} Concerned for her safety, Transit Police began to ride with Pate on her route.
Pate testified that she only noticed appellant one time while RTA Detective Narayan Stitt
was riding with her. She stated that on that occasion, appellant spoke to her while
boarding, stating, “Hey baby, how are you doing? I missed you.” Pate testified that, as a
result of her previous interactions with appellant, she was worried he wanted to do her
harm. She was afraid he might kill her.
{¶9} Officer Clay Saylor of the RTA Police testified that he took an incident report
from Pate on November 18, 2012. He stated that Pate appeared “distraught, upset,
almost in tears.”
{¶10} Officer Jared Shelley of the RTA Police testified that on January 2, 2013, he
responded to a call regarding the harassment of an RTA operator. He stated that he and
his partner spoke with Pate and had her fill out a statement documenting the incident.
Officer Shelley noted that Pate seemed uneasy and nervous and that her hands were
shaking.
{¶11} The state also presented testimony from RTA Detective Narayan Stitt. Det.
Stitt testified that he was assigned the case on January 3, 2013, and reviewed both
incident reports involving appellant. He testified that, as a result of the information in
the reports, he made arrangements to ride with Pate on January 4, 2013. Det. Stitt stated
that he encountered appellant the first day he rode the bus. According to Det. Stitt,
Pate’s demeanor changed immediately when appellant boarded the bus. Det. Stitt stated
that he heard appellant tell Pate, “Yeah, yeah. I told you. Yeah, you don’t listen.
Yeah, yeah. What did I tell you? What did I tell you? You don’t listen.” Det. Stitt
stated that Pate became shaken and seemed nervous and uneasy.
{¶12} When appellant exited the bus, Det. Stitt questioned him about his
relationship with Pate. In response, appellant answered, “Yes, I know her. She is my
friend.” When asked whether he ever did anything to make Pate feel uncomfortable,
appellant stated, “No. Never said anything to her. Never told that bitch I would kill
her.” Det. Stitt explained that appellant’s response was unprompted.
{¶13} Det. Stitt further testified about the surveillance video that depicted
appellant during the November 2012 incident. While reviewing the video in court, Det.
Stitt noted that appellant appeared to have a large, weighted object in his left pocket that
seemed to have two square angles. Det. Stitt testified that the object appeared to be the
handle of a gun. Det. Stitt also testified that he heard Pate state to appellant in the video,
“[w]hy did you say you want to shoot me in the head?”
{¶14} Finally, appellant testified on his own behalf. He admitted that it was him
in the surveillance video. However, he stated that his intent was just to talk to Pate and
to “knock on a girlfriend.” Appellant admitted to drinking prior to the November 2012
incident and telling Pate that he served 16 years in prison for a crime he committed.
Further, appellant admitted to speaking to Pate while she was driving the second bus
route. However, appellant denied any allegation that he was ever aggressive towards
Pate or threatened to cause her harm in any way.
{¶15} Appellant now brings this timely appeal, raising two assignments of error
for review.
III. Law and Analysis
{¶16} In his first assignment of error, appellant argues that the trial court erred in
denying his motion for acquittal as to his menacing by stalking charge based on the state’s
failure to present sufficient evidence to sustain a conviction. In his second assignment of
error, appellant argues that his conviction was against the manifest weight of the
evidence. Because appellant’s first and second assignments of error raise similar
arguments, we consider them together.
{¶17} Crim.R. 29 mandates that the trial court issue a judgment of acquittal where
the prosecution’s evidence is insufficient to sustain a conviction for the offense. Crim.R.
29(A) and sufficiency of the evidence review require the same analysis. State v.
Mitchell, 8th Dist. Cuyahoga No. 95095, 2011-Ohio-1241, ¶ 18, citing State v. Tenace,
109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386.
{¶18} A challenge to the sufficiency of the evidence supporting a conviction
requires the court to determine whether the prosecution has met its burden of production
at trial. State v. Givan, 8th Dist. Cuyahoga No. 94609, 2011-Ohio-100, ¶ 13, citing State
v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). On review for sufficiency,
courts are to assess not whether the prosecution’s evidence is to be believed, but whether,
if believed, the evidence against a defendant would support a conviction. Id.{¶19} The 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. Vickers, 8th Dist.
Cuyahoga No. 97365, 2013-Ohio-1337, ¶ 17, citing State v. Jenks, 61 Ohio St.3d 259,
574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶20} Even when there is sufficient evidence to support the verdict, a court of
appeals may decide that the verdict is against the weight of the evidence. Thompkins at
paragraph two of the syllabus. When reviewing a manifest weight challenge, we must
consider whether the evidence in the case is conflicting or where reasonable minds might
differ as to the inferences to be drawn from it, the weight of the evidence, and the
credibility of the witnesses to determine if 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.” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485
N.E.2d 717 (1st Dist.1983), and State v. Smith, 80 Ohio St.3d 89, 114, 684 N.E.2d 668(1997).
{¶21} In the instant case, appellant was convicted of menacing by stalking in
violation of R.C. 2903.211(A)(1), which provides that “[n]o person by engaging in a
pattern of conduct shall knowingly cause another person to believe that the offender will
cause physical harm to the other person or cause mental distress to the other person.”
The “state need only show that a defendant knowingly caused the victim to believe that he
would cause her mental distress or physical harm.” State v. Hart, 12th Dist. Warren No.
CA2008-06-079, 2009-Ohio-997, ¶ 31. Therefore, “neither actual physical harm nor
actual mental distress is required.” Id., quoting State v. Horsley, 10th Dist. Franklin No.
05AP-350, 2006-Ohio-1208, ¶ 45, 47.
{¶22} In challenging the evidence supporting his conviction, appellant argues that
the state failed to establish a “pattern of conduct.” Pursuant to R.C. 2903.211(D)(1), a
“pattern of conduct” is defined as “two or more actions or incidents closely related in
time, whether or not there has been a prior conviction based on any of those actions or
incidents.” In determining what constitutes a pattern of conduct, courts must take every
action of the respondent into consideration, even if some of the actions in isolation do not
seem particularly threatening. Middletown v. Jones, 167 Ohio App.3d 679,
2006-Ohio-3465, 856 N.E.2d 1003, ¶ 10 (12th Dist.).
{¶23} In the case at hand, appellant’s conviction stemmed from three interactions
with Pate from November 2012 to January 2013. On the first occasion in late November
2012, appellant referenced shooting Pate in the head while he revealed what Pate
perceived to be a firearm under his jacket. Further, appellant attempted to take her off
the bus and stated that he had extensive knowledge of her work schedule, had been
watching her, and was going to “get” her.
{¶24} Following this initial incident, appellant continued to approach Pate in
January 2013. Pate testified that on two separate occasions in January 2013, appellant
made threatening references to his growing dissatisfaction with her repeated rejection of
his advancements. During these conversations, appellant stated that he had been looking
for Pate after she switched bus routes and that he loved and missed her. At trial, Pate
testified that, in light of appellant’s initial threat to shoot her in November 2012, these
subsequent interactions with him terrified her and caused her to believe he wanted to do
her harm or might kill her.
{¶25} Based on the foregoing testimony, we find the state presented sufficient
evidence that, on at least three occasions, appellant knowingly engaged in conduct that
caused Pate to believe he would cause her physical harm and did cause her mental
distress. While appellant argues that the second and third interactions amounted to
nothing more than aggressive flirtation, his contention ignores his statements that
demonstrated his growing frustration with Pate and indicated that he had been searching
for her since November 2012. Moreover, appellant’s position ignores how a reasonable
person would react to such comments in light of his previous threat to shoot Pate in the
head and his attempt to forcefully remove her from the RTA bus.
{¶26} With respect to the time period between each of the complained-of
incidents, we find that, under the circumstances presented herein, the state presented
sufficient evidence to establish that they were “closely related in time.” The testimony
established that the incidents leading to appellant’s arrest occurred over an approximately
six-week period of time. See State v. Benitez, 8th Dist. Cuyahoga No. 98930,
2013-Ohio-2334 (finding a pattern of conduct where several incidents occurred over a
several month period). Moreover, the only reason there was a gap in time between the
first and second incidents was because Pate switched bus routes, and it took appellant
several weeks to “find” her. Accordingly, we find the state sufficiently established
appellant’s “pattern of conduct.”
{¶27} Based on the foregoing, we find that a rational jury could have found,
beyond a reasonable doubt, that appellant, by engaging in a pattern of conduct, knowingly
caused Pate to believe he would cause her physical harm and did cause her mental
distress. Thus, the trial court did not err in denying appellant’s motion for acquittal.
{¶28} Moreover, we cannot say that appellant’s conviction was against the
manifest weight of the evidence. While appellant contends that the state failed to present
any evidence to corroborate Pate’s testimony concerning his threats, we are mindful that
the weight to be given the evidence and the credibility of the witnesses are matters
primarily for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212(1967), paragraph one of the syllabus. Thus, the jury was in the best position to weigh
the credibility of Pate’s testimony and was free to place significant weight on her
testimony that appellant’s obsessive and aggressive pattern of conduct caused her to
believe he would cause her physical harm and did cause her mental distress. Having
reviewed the entire record, we cannot clearly find that the evidence weighs heavily
against a conviction or that a manifest miscarriage of justice has occurred.
{¶29} Appellant’s first and second assignments of error are overruled.
{¶30} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., CONCURS;
EILEEN A. GALLAGHER, J., DISSENTS (WITH SEPARATE OPINION)
EILEEN A. GALLAGHER, J., DISSENTING:
{¶31} I respectfully dissent from my learned colleagues. I would hold that the
state failed to present sufficient evidence to establish the charge of menacing by stalking.
I find the separate incidents in this case to be too remote in time to establish a pattern of
conduct pursuant to R.C. 2903.211(D)(1). Furthermore, aside from the November 2012
incident, the record contains no other threatening conduct on the part of the appellant.
Appellant’s statements during subsequent encounters such as, “I love you. I miss you,”
were insufficient, in my view, to establish the state’s burden under R.C. 2903.211(A)(1).
Therefore, I would reverse appellant’s conviction.