Cleveland Metroparks v. Lawrence ( 2012 )


Menu:
  • [Cite as Cleveland Metroparks v. Lawrence, 
    2012-Ohio-5729
    .]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 98085
    CLEVELAND METROPARKS
    PLAINTIFF-APPELLEE
    vs.
    PAUL LAWRENCE
    DEFENDANT-APPELLANT
    JUDGMENT:
    REVERSED AND VACATED
    Criminal Appeal from the
    Lakewood Municipal Court
    Case No. 2011 CRB 01752
    BEFORE:           E. Gallagher, J., Jones, P.J., and Keough, J.
    RELEASED AND JOURNALIZED:                            December 6, 2012
    ATTORNEY FOR APPELLANT
    Dominic J. Vitantonio
    Argie, D’Amico & Vitantonio
    6449 Wilson Mills Road
    Mayfield Village, Ohio 44143
    ATTORNEY FOR APPELLEE
    Anne Eisenhower
    Chief Prosecuting Attorney
    Cleveland Metroparks
    4600 Valley Parkway
    Fairview Park, Ohio 44126
    EILEEN A. GALLAGHER, J.:
    {¶1} Paul Lawrence appeals from his conviction in the Lakewood Municipal Court of
    two counts of menacing.
    {¶2} In his assignments of error, appellant contends that the trial court erred in
    denying his Crim.R. 29 motions for acquittal and that his convictions were against the manifest
    weight of the evidence.
    {¶3} We reverse the judgment of the trial court and vacate the appellant’s
    convictions.
    {¶4} The facts presented at trial were that on August 29, 2011, Allison Rowland and
    Elizabeth Difiore were in the Rocky River Reservation of the Cleveland Metroparks.        They
    had driven to the Metroparks and ran on the All-Purpose Trail to Hogsback Road, which they
    ascended.      While they were running up the hill, they observed a blue Chevy Malibu driven by
    a white male in a baseball cap pass them on the roadway.       During that time, they made eye
    contact with the driver.   Once the two girls reached the summit, they saw that vehicle parked
    in the parking lot with the male seated inside.     The male then exited his automobile and
    walked to a grouping “of like three trees.”     At that time, the girls descended the hill and
    began to walk on the All-Purpose Trail.     During their walk, they saw the same blue Chevy
    Malibu drive past them.    They later saw the vehicle approaching from the opposite direction.
    When they saw the Chevy Malibu parked along the road, they changed direction and began
    walking back to their own automobile.    It was after they had reached their car that they waved
    down a park ranger and related to him their observations.      While talking to the ranger, the
    girls saw the blue Chevy Malibu driving on the road towards them and they pointed it out to
    the ranger.   The ranger then approached the vehicle and spoke to the driver, the appellant.
    {¶5} Both of the witnesses testified that although they made eye contact with the
    appellant, they admitted that he made no statements to them, that he made no gestures towards
    them, overt or otherwise, they had no prior relationship with him and that there was no
    physical contact or confrontation between either of them and the appellant.
    {¶6} The offense of menacing occurs when an individual knowingly causes another to
    believe that the offender will cause physical harm to the person or property of such other
    person or to a member of his immediate family.      R.C. 2903.22.    Menacing does not require
    that the offender be able to carry out a given threat. State v. Schwartz, 
    77 Ohio App.3d 484
    ,
    
    602 N.E.2d 671
     (12th Dist.1991).    Instead, it is sufficient if the offender knowingly causes the
    victim to believe that the threat will be executed.        Niles v. Holloway, 11th Dist. No.
    96-T-5533, 
    1997 Ohio App. LEXIS 4517
     (Oct. 3, 1997).           The threat need not actually be
    verbalized; it can be implied by the offender’s actions.     Id.; State v. Sperk, 8th Dist. No.
    91799, 
    2009-Ohio-1615
    , ¶ 33.       The key is whether the victim genuinely believes that he or
    she is facing physical harm to person or property. 
    Id.
    {¶7} Lawrence concedes that threats sufficient to support a conviction for menacing
    can be nonverbal or implied.       Nevertheless, he contends that his convictions were not
    supported by sufficient evidence and were against the manifest weight of the evidence because
    there was “no evidence that [he] did anything at all that could in any manner be construed to
    lead to the conclusion that he ‘knowingly caused’ either of the alleged victims to believe that
    he would cause harm to them.”      He argues that he and the alleged victims were always in a
    public area, he only made eye contact with each victim once and there was nothing unique or
    noteworthy about the eye contact, he never said anything to the girls, and he never initiated or
    engaged in any communicative act or gesture with them.
    {¶8} In his first and third assignments of error, Lawrence argues that the trial court
    erred in denying his Crim.R. 29 motion for acquittal because his convictions were not
    supported by suficient evidence and the alleged victims never identified him as the alleged
    perpetrator.   In his second assignment of error, Lawrence contends that his convictions are
    against the manifest weight of the evidence.     We consider the assignments of error together
    because they are related.
    {¶9} A Crim.R. 29 motion challenges the legal sufficiency of the evidence. State v.
    Bowden, 8th Dist. No. 92266, 
    2009-Ohio-3598
    , ¶ 12.         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. Thompkins, 
    78 Ohio St.3d 380
    , 386, 
    1997-Ohio-52
    , 
    678 N.E.2d 541
    .
    {¶10}     A manifest weight challenge, on the other hand, questions whether the
    prosecution met its burden of persuasion. State v. Thomas, 
    70 Ohio St.2d 79
    , 80, 
    434 N.E.2d 1356
     (1982).    When considering a manifest weight challenge, a reviewing court must review
    the entire record, weigh the evidence and all reasonable inferences, consider the credibility of
    witnesses, and determine whether 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.”
    Thompkins at 387.     A judgment should be reversed as against the manifest weight of the
    evidence “only in the exceptional case in which the evidence weighs heavily against the
    conviction.”   
    Id.
       A finding that a conviction was supported by the manifest weight of the
    evidence necessarily includes a finding of sufficiency. Id. at 388.
    {¶11} There is nothing in the record before us to support the charges of menacing.
    The record only reflects the unfounded beliefs of the two girls who testified.
    {¶12} Additionally, neither of the girls who testified as victims made an in-court
    identification of the appellant as the perpetrator.
    {¶13} A long-established principle of criminal law is that the prosecution must prove
    “beyond a reasonable doubt the identity of the accused as the person who actually committed
    the crime.”   In re K.S., 8th Dist. No. 97343, 
    2012-Ohio-2388
    .       In-court identification of the
    defendant by a victim or witness may be the most common method of establishing such
    identity, but it is not mandatory.
    {¶14} “The failure to conduct an in-court identification is not fatal to the state’s case
    when the circumstances of the trial indicate that the accused is indeed the person about whom
    the witnesses are testifying.”   State v. Melton, 8th Dist. No. 87186, 
    2006-Ohio-5610
    ; State v.
    Shinholster, 9th Dist. No. 25328, 
    2011-Ohio-2244
    .
    {¶15} In this case, there was not sufficient evidence, circumstantial or otherwise, that
    the appellant was the person whom Miss Rowland and Miss Difiore claim menaced them.
    {¶16} We recognize that those witnesses pointed out to a park ranger a vehicle, driven
    by the appellant, that they claimed followed them.      We also acknowledge that Ranger David
    Albaugh made an in-court identification of the appellant as the driver of said vehicle.
    However, that is not sufficient to prove the identity of the alleged perpetrator.
    {¶17} Miss Rowland and Miss Difiore were never asked to identify the appellant in
    court, they never viewed a photo array in which they identified the appellant and, other than
    pointing out a specific vehicle, a rather common Chevy Malibu, they did not make any further
    identification of the appellant to the ranger at the scene.
    {¶18} Appellant’s conviction is vacated and he is ordered discharged.
    It is ordered that appellant recover from appellee costs herein taxed.
    The court finds there were reasonable grounds for this appeal.
    It is ordered that a special mandate be sent to said lower court to carry this judgment
    into execution.
    A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
    Rules of Appellate Procedure.
    EILEEN A. GALLAGHER, JUDGE
    LARRY A. JONES, SR., P.J., CONCURS;
    KATHLEEN ANN KEOUGH, J., DISSENTS
    WITH SEPARATE OPINION
    KATHLEEN ANN KEOUGH, J., DISSENTING:
    {¶19} Respectfully, I dissent. I would hold that Lawrence’s menacing
    convictions were supported by sufficient evidence and not against the
    manifest weight of the evidence. Furthermore, I would find that Lawrence’s
    identity as the perpetrator was proven beyond a reasonable doubt.
    Accordingly, I would overrule the assignments of error and affirm Lawrence’s
    convictions.
    {¶20} The majority omits significant details from the record when
    recounting the facts of this case. The evidence at trial demonstrated that as
    Elizabeth and Allison were jogging up the hill to the Stincomb Memorial, they
    noticed a dark blue Chevy Malibu slow down as it drove by. The driver of the
    car, a white male wearing a baseball cap, later identified as Lawrence, made
    eye contact with Elizabeth as the car slowly passed by.        When the girls
    reached the top of the hill, they observed the Chevy Malibu parked in the
    parking lot; the car was the only car in the lot and the male was sitting in the
    car. The girls walked past the car to an overlook area; when they turned
    around, they saw the male get out of his car and hide behind some trees.
    Both Elizabeth and Allison testified that the male stood behind the trees, with
    his hands in the area of his genitals, and watched them.
    {¶21} The male got back in his car when the girls started down the hill.
    The girls ran down the hill and began walking when they reached the road.
    Only a short time later, the Chevy Malibu came from behind the girls and
    passed them, again noticeably slowing down as it drove by.            The girls
    continued walking, but just before they came to a curve in the road, they saw
    through some trees that the Chevy Malibu was pulled to the side of the road.
    Elizabeth testified that the car was parked right next to the path the girls
    were walking and “it seemed like he was pulling over basically to wait for us.”
    At that point, Allison called her mother and told her that she and Elizabeth
    feared they were going to be harmed or kidnapped. She described the car
    and gave her mother the license number.
    {¶22} Allison stayed on the phone with her mother as the girls turned
    around and began walking in the opposite direction, away from the car. But
    shortly thereafter, the car came from behind the girls and slowly passed them
    again. Allison made eye contact with the driver and gestured as if to say
    “What are you doing?” as he drove by. The girls decided to return to their car
    but as they were walking to the parking lot, the car came back and slowly
    passed them again. Allison testified that when they then began running to
    their car, the car turned around and passed them yet again.          Elizabeth
    estimated that they had seen the car at least seven times by then.
    {¶23} A Metroparks ranger on routine patrol saw the girls, who
    appeared to be distressed, standing by their car in the parking lot. When he
    pulled in the parking lot, Elizabeth and Allison immediately flagged him down
    and described what had happened to them. As they were standing in the
    parking lot talking to the ranger, they saw the Chevy Malibu come around the
    corner toward the parking lot. Allison saw the driver slam on the brakes and
    when they pointed out the car to the ranger, the young girls and the ranger
    saw it make an abrupt U-turn and drive away.
    {¶24} The ranger followed the Malibu and effected a traffic stop. The
    driver told the ranger that he was a deputy with the Cuyahoga County
    Sheriff’s Department and flashed his badge; after demanding more
    identification, the ranger learned the driver was Lawrence. When the ranger
    asked Lawrence what he was doing in the park, Lawrence told him that he
    was “killing time” while he waited to pick up his wife from work at Fairview
    Hospital. However, the ranger later learned that Lawrence’s wife worked in
    downtown Cleveland at the Cuyahoga County Sheriff’s Department, not at
    Fairview Hospital.
    {¶25} On this record, it is evident that Lawrence knowingly menaced
    Elizabeth and Allison. He noticeably slowed down and made eye contact with
    Elizabeth when he drove by the girls the first time, as they jogged up the
    Stinchcomb Memorial hill. He was at the top of the hill when they got there,
    and then got out of his car, hid behind some trees and watched them, with his
    hands near his genitals, as they stood at the top of the hill. Another time, he
    parked his car on the side of the road, directly next to the path the girls were
    walking, and waited for them to walk around the curve in the road. When
    they turned to walk in the opposite direction, he immediately turned around
    and drove by them again.      No matter what evasive action the girls took,
    Lawrence continued to follow them — each time they went a different way, he
    turned around, came back, and slowly drove by them again. He drove by
    them at least five times, noticeably slowing down each time he drove by and
    making eye contact with each victim at least once. And even when Allison
    gestured to Lawrence — putting him on notice that his actions were
    threatening — he continued to follow the girls.
    {¶26} Most significantly, when Lawrence saw the girls talking with a
    park ranger and pointing out his car to the ranger, he immediately braked,
    made an abrupt U-turn, and headed in the opposite direction. And after the
    ranger stopped him and questioned him, Lawrence attempted to avoid
    questioning by flashing his law enforcement badge and then lied about what
    he was doing in the park that day.
    {¶27} “An accused’s ‘flight, escape from custody, resistance to arrest, * *
    * and related conduct are admissible as evidence of consciousness of guilt, and
    thus of guilt itself.’” State v. Hand, 
    107 Ohio St.3d 378
    , 
    2006-Ohio-18
    , 
    840 N.E.2d 151
    , ¶ 167, quoting State v. Eaton, 
    19 Ohio St.2d 145
    , 160, 
    249 N.E.2d 897
     (1969).     See also State v. Vanderhorst, 8th Dist. No. 97242,
    
    2012-Ohio-2762
    , ¶ 55 (“Flight does not in and of itself raise the presumption of
    guilt but it may show consciousness of guilt or a guilty connection with a
    crime.”) Lawrence’s attempts to flee and avoid questioning by flashing his
    badge, and his lies to the ranger about what he was doing in the park,
    demonstrate that he knew his conduct was not benign.
    {¶28} “A person acts knowingly, regardless of his purpose, when he is
    aware that his conduct will probably cause a certain result or will probably be
    of a certain nature.” R.C. 2901.22(B). Lawrence was not convicted on the
    basis of the victims’ “unfounded beliefs”; he was convicted because the
    evidence was clear that he knowingly caused Elizabeth and Allison to believe
    that he would cause them physical harm.        As the majority points out, a
    threat need not be verbalized; it can be implied by the offender’s actions.
    Niles v. Holloway, 11th Dist. No. 96-T-5533, 
    1997 Ohio App. LEXIS 4517
     (Oct.
    3, 1997). The key is whether the victim genuinely believes that he or she is
    facing physical harm to person or property. 
    Id.
     Both Elizabeth and Allison
    testified that they believed Lawrence was going to harm them, a credibility
    determination that is for the trier of fact.   Accordingly, I would find that
    Lawrence’s convictions for menancing were not against the manifest weight of
    the evidence, and were supported by sufficient evidence.
    {¶29} I also dissent from the majority’s conclusion that there was
    insufficient evidence that Lawrence was the perpetrator.          Allison and
    Elizabeth pointed out the Chevy Malibu that had been following them to the
    ranger, who then stopped the car. The ranger identified Lawrence in court as
    the driver of the Chevy Malibu that he stopped.        Furthermore, detective
    Daniel Bader, who investigated the incident, testified that Lawrence admitted
    he was in the metroparks that day and that he was pulled over by a ranger.
    There can be no other conclusion than that Lawrence was the person who
    menaced Allison and Elizabeth.
    

Document Info

Docket Number: 98085

Filed Date: 12/6/2012

Precedential Status: Precedential

Modified Date: 10/30/2014