State v. Myers

[Cite as State v. Myers, 2022-Ohio-991.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
STATE OF OHIO C.A. No. 21AP0027
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
JACOB MYERS COURT OF COMMON PLEAS
COUNTY OF WAYNE, OHIO
Appellant CASE No. 2020 CRC-I 000335
DECISION AND JOURNAL ENTRY
Dated: March 28, 2022
CALLAHAN, Judge.
{¶1} Appellant, Jacob Myers, appeals his convictions by the Wayne County Court of
Common Pleas. This Court affirms.
I.
{¶2} In the early hours of May 22, 2020, police officers from the City of Wooster
responded to a 911 call regarding a suspected overdose death. When they arrived at the residence
in which the deceased, S.M., was located, they identified two males and two females. Upon
conducting a protective sweep, they also located Mr. Myers and a third female, who were sleeping
on a futon-style couch in the basement. Police found that it was difficult to engage the individuals
at the scene in conversation, and no one was taken into custody with regard to the incident at that
time.
{¶3} Later that day, two of the individuals who had been identified at the scene and a
third woman, who had not been previously identified, came to the Wooster Police Department and
2
requested to speak with an officer about the morning’s events. According to their statements,
during the course of the events surrounding the overdose death, Mr. Myers held the occupants of
the house at gunpoint and told them that they were not to leave the premises. Based on this
information, Mr. Myers was charged with three counts of kidnapping in violation of R.C.
2905.01(A)(3) and three counts of abduction in violation of R.C. 2905.02(A)(2), each
accompanied by firearm specifications pursuant to R.C. 2941.145(A). Mr. Myers was also charged
with having a weapon while under a disability in violation of R.C. 2923.13(A)(3) and disrupting
public services in violation of R.C. 2909.04(A)(1). A jury found Mr. Myers not guilty of
kidnapping and abduction with respect to two of the victims named in the indictment but guilty
with respect to the third victim, J.B. The jury also found Mr. Myers guilty of the accompanying
firearm specifications and the remaining charges of having a weapon while under disability and
disrupting public services. The trial court merged the abduction and kidnapping counts for
purposes of sentencing and sentenced Mr. Myers to a stated term of six to nine years for the
kidnapping conviction with a mandatory three-year prison term for the accompanying firearm
specification. The trial court also sentenced Mr. Myers to concurrent prison terms of twenty-four
months and twelve months on the remaining convictions and ordered those sentences to be served
concurrent to the sentence for the kidnapping conviction as well.
{¶4} Mr. Myers appealed, asserting two assignments of error.
II.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT’S FINDING OF GUILT IS AGAINST THE MANIFEST
WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
3
{¶5} In his first assignment of error, Mr. Myers maintains that each of his convictions is
based on insufficient evidence and is against the manifest weight of the evidence. This Court does
not agree.
{¶6} Because sufficiency and manifest weight are separate and distinct questions, this
Court has observed that “‘it is not appropriate to combine a sufficiency argument and a manifest
weight argument within a single assignment of error.’” State v. Seibert, 9th Dist. Wayne Nos.
20AP0013, 20AP0014, 2021-Ohio-3069, ¶ 13, quoting State v. Mukha, 9th Dist. Wayne No.
18AP0019, 2018-Ohio-4918, ¶ 11. See also State v. Perkins, 9th Dist. Wayne No. 20AP0031,
2021-Ohio-2630, ¶ 9; App.R. 12(A)(2); Loc.R. 7(B)(7). Nonetheless, this Court has the discretion
to consider the merits of Mr. Myers’ arguments, and we do so despite the fact that they are
improperly framed. See Seibert at ¶ 13; Perkins at ¶ 9.
Sufficiency of the Evidence
{¶7} “Whether a conviction is supported by sufficient evidence is a question of law that
this Court reviews de novo.” State v. Williams, 9th Dist. Summit No. 24731, 2009-Ohio-6955, ¶
18, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). The relevant inquiry is whether the
prosecution has met its burden of production by presenting sufficient evidence to sustain a
conviction. Thompkins at 390 (Cook, J., concurring). For purposes of a sufficiency analysis, this
Court must view the evidence in the light most favorable to the State. Jackson v. Virginia, 443
U.S. 307, 319 (1979). We do not evaluate credibility, and we make all reasonable inferences in
favor of the State. State v. Jenks, 61 Ohio St.3d 259, 273 (1991). The evidence is sufficient if it
allows the trier of fact to reasonably conclude that the essential elements of the crime were proved
beyond a reasonable doubt. Id.4
{¶8} R.C. 2905.01(A)(3), which prohibits kidnapping, provides that “[n]o person, by
force, threat, or deception * * * shall remove another from the place where the other person is
found or restrain the liberty of the other person * * * [t]o terrorize, or to inflict serious physical
harm on the victim or another[.]” “Force” is defined as “any violence, compulsion, or constraint
physically exerted by any means upon or against a person or thing.” R.C. 2901.01(A)(1). A
“threat” includes “[a] communicated intent to inflict harm or loss on another * * *, [especially]
one that might diminish a person’s freedom to act voluntarily or with lawful consent; a declaration,
express or implied, of an intent to inflict loss or pain on another[.]” Black’s Law Dictionary (11th
Ed.2019).
{¶9} “Terrorize” has been defined according to its ordinary and common usage: “‘to fill
with terror and anxiety.’” State v. Suggs, 9th Dist. Summit Nos. 27812, 27865, 27866, 2016-Ohio-
5692, ¶ 16, quoting State v. Chasteen, 12th Dist. Butler No. CA2007-12-308, 2009-Ohio-1163, ¶
21, quoting State v. Eggleston, 11th Dist. Lake No. 2008-L-047, 2008-Ohio-6880, ¶ 30, fn. 1.
Compare State v. Vigil, 8th Dist. Cuyahoga No. 103940, 2016-Ohio-7485, ¶ 22 (defining
“terrorize” as “impress with terror [or] fear or to coerce by intimidation”). With respect to the
culpable mental state of an accused, “R.C. 2905.01(A) requires the state to show that the
kidnapping involved a purposeful removal or restraint.” State v. Hartman, 93 Ohio St.3d 274, 289
(2001). See also State v. Harris, 9th Dist. Lorain No. 17CA011109, 2018-Ohio-1329, ¶ 11; State
v. Wong, 9th Dist. Summit No. 27486, 2016-Ohio-96, ¶ 28. “A person acts purposely when it is
the person’s specific intention to cause a certain result, or, when the gist of the offense is a
prohibition against conduct of a certain nature, regardless of what the offender intends to
accomplish thereby, it is the offender’s specific intention to engage in conduct of that nature.”
R.C. 2901.22(A).
5
{¶10} R.C. 2905.02, which prohibits abduction, provides, in part, that “[n]o person,
without privilege to do so, shall knowingly * * * [b]y force or threat, restrain the liberty of another
person under circumstances that create a risk of physical harm to the victim or place the other
person in fear[.]” R.C. 2905.02(A)(2). “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.” R.C. 2901.22(B). Because direct evidence of mental state is not available,
proof of a culpable mental state “‘must be derived from circumstantial evidence * * *.’” State v.
Syed, 9th Dist. Medina Nos. 17CA0013-M, 17CA0014-M, 2018-Ohio-1438, ¶ 23, quoting State
v. Flowers, 9th Dist. Lorain No. 03CA008376, 2004-Ohio-4455, ¶ 15.
{¶11} J.B. testified that, on the evening in question, she went to an apartment occupied by
C.R. because she needed a ride after babysitting for a mutual acquaintance. Several other
individuals, including Mr. Myers, were present. J.B. testified that she left the apartment at one
point in the evening because she knew where they could obtain marijuana, but that they returned
because C.R. “realized he didn’t have his dope in his pocket[.]” When they returned to the
apartment, she waited momentarily in the vehicle. J.B. testified that from that vantage point, she
could see in the front door and, as a consequence, witnessed individuals inside the house flipping
S.M. out of a recliner.1 J.B. recalled that she entered the house as individuals were throwing water
on S.M., but S.M. did not respond.
{¶12} According to J.B., despite the unfolding medical emergency, C.R. “was worried
about his dope[.]” At one point, according to J.B.’s testimony, a female took J.B. upstairs and
strip searched her. J.B. also testified that after briefly going upstairs himself, C.R. returned to the
1
The witnesses at trial also referred to S.M. as “CC.” Because it appears that S.M. is
indicative of her proper name, this opinion refers to her by those initials for purpose of clarity.
6
first floor and handed Mr. Myers a gun. J.B. recalled that Mr. Myers took her phone when she
tried to call 911, stood by the front door, and “said nobody was leaving.” She testified that Mr.
Myers and C.R. would not allow anyone to go near S.M. to render aid, and she recalled that Mr.
Myers “stood at the door with a gun and I sat in front of the stairs * * * right in front of the door
so he was right in front of me and he told me I was not allowed to move, wasn’t allowed to help
[S.M.].” J.B. testified that this situation persisted for approximately ninety minutes. She recalled
that she felt “[s]cared” and testified that she thought she “was going to die.” J.B. testified that
after approximately ninety minutes, C.R. relented and instructed someone to call 911. J.B. recalled
that she grabbed her phone and belongings, fled the house, and called 911 to report S.M.’s
condition.
{¶13} Viewing the evidence at trial in the light most favorable to the State, a jury could
reasonably conclude beyond a reasonable doubt that Mr. Myers restrained J.B.’s liberty by holding
her at gunpoint while standing between her and the front door of the residence and denying her
egress. A jury could also reasonably conclude, beyond a reasonable doubt, that Mr. Myers did so
with the purpose to fill her with terror or anxiety or to coerce her to remain by means of
intimidation. Accordingly, his conviction for kidnapping in violation of R.C. 2905.01(A)(3) is not
based on insufficient evidence. Similarly, a jury could reasonably conclude beyond a reasonable
doubt that Mr. Myers restrained J.B.’s liberty under circumstances that placed her in fear with the
awareness that, by holding her at gunpoint, his conduct would probably cause that result.
Consequently, his conviction for abduction is not supported by insufficient evidence.
{¶14} Mr. Myers was also convicted of possessing a weapon while under disability. R.C.
2923.13(A)(3) provides that “[u]nless relieved from disability under operation of law or legal
process, no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance
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if * * * [t]he person * * * has been convicted of any felony offense involving the illegal possession,
use, sale, administration, distribution, or trafficking in any drug of abuse * * * .” Mr. Myers does
not dispute that he has a disability by virtue of a prior conviction for such an offense. According
to J.B.’s testimony, Mr. Myers took the gun from C.R. and stood blocking the front door with the
gun drawn for approximately ninety minutes. Viewing this testimony in the light most favorable
to the State, a jury could reasonably believe beyond a reasonable doubt that Mr. Myers possessed
a weapon while under disability, and his conviction is not based on insufficient evidence.
{¶15} R.C. 2909.04(A)(1), which prohibits disrupting public services, provides that “[n]o
person, purposely by any means or knowingly by damaging or tampering with any property, shall
* * * [i]nterrupt or impair * * * telephone * * * service * * *.” “‘Telephone service’ includes both
the initiation and receipt of calls.” State v. James, 5th Dist. Stark No. 2016CA00144, 2017-Ohio-
7861, ¶ 76, citing State v. Brown, 97 Ohio App.3d 293, 301 (8th Dist.1994).
{¶16} This Court has concluded that turning off or denying access to an individual cellular
phone, without more, is not sufficient evidence of disrupting public services. See State v. Bedford,
9th Dist. Summit Nos. 25048, 25066, 2010-Ohio-3577, ¶ 9-11, citing State v. Robinson, 124 Ohio
St.3d 76, 2009-Ohio-5937, ¶ 32, and State v. Tayse, 9th Dist. Summit No. 23978, 2009-Ohio-1209,
¶ 23. Nonetheless, we have also stated that “[t]he gravamen * * * of the analysis is whether the
services were interrupted or impaired in any significant way.” Bedford at ¶ 11. Compare James
at ¶ 76. Consistent with this principle, evidence that an accused took a cellular phone away from
a victim in order to prevent the victim from calling 911 will support a conviction under R.C.
2909.04(A)(1). See State v. Parker, 7th Dist. Mahoning No. 15 MA 0174, 2017-Ohio-4382, ¶ 65-
66; State v. Tajblik, 6th Dist. Wood No. WD-14-064, 2016-Ohio-977, ¶ 12-14; James at ¶ 76-82;
8
State v. Galindo, 5th Dist. Stark No. 2011CA00258, 2012-Ohio-3626, ¶ 16-21; State v. White, 2d
Dist. Montgomery No. 21795, 2007-Ohio-5671, ¶ 6-15.
{¶17} J.B. testified that as she called 911 to report the medical emergency that led to
S.M.’s death, Mr. Myers took her phone away from her and ended the call. She also testified that
he restricted access to her phone and the phones of others present and prevented them from calling
for assistance. This evidence, viewed in the light most favorable to the State, would reasonably
permit a jury to conclude beyond a reasonable doubt that Mr. Myers violated R.C. 2909.04(A)(1).2
Accordingly, his conviction for disrupting public services is not based on insufficient evidence.
Manifest Weight of the Evidence
{¶18} When considering whether a conviction is against the manifest weight of the
evidence, this Court applies a different standard. See State v. Martinez-Castro, 9th Dist. Lorain
No. 18CA011361, 2019-Ohio-1155, ¶ 14, citing Eastley v. Volkman, 132 Ohio St.3d 328, 2012-
Ohio-2179, ¶ 11-13. To evaluate the weight of the evidence, this Court must:
review 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). A reversal on this basis is reserved for
the exceptional case in which the evidence weighs heavily against the conviction. Id., citing State
v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
2
Mr. Myers has not articulated a legal argument regarding the applicability of R.C.
2909.04(A)(1) to the facts of this case. Compare State v. Herring, 8th Dist. Cuyahoga No. 104441,
2017-Ohio-743, ¶ 31-32 (Stewart, J., concurring in part and dissenting in part). This Court declines
to construct such an argument on his behalf. See State v. Upchurch, 9th Dist. Medina No.
20CA0001-M, 2021-Ohio-94, ¶ 19, citing Cardone v. Cardone, 9th Dist. Summit No. 18349, 1998
WL 224934, *8 (May 6, 1998).
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{¶19} In support of his argument that his convictions are against the manifest weight of
the evidence, Mr. Myers maintains that J.B.’s testimony was not credible because she was under
the influence of LSD on the evening in question. J.B. acknowledged this to be the case, but she
specifically denied that her memory was affected by her drug use. In this respect, Mr. Myers’ brief
contains frequent, detailed references to J.B.’s experience with acid on the night of S.M.’s death.
Those descriptions, however, misrepresent J.B.’s testimony on this point, which consisted of a
single statement: “[LSD] makes you see colors, that’s why I was looking at the graffiti on the
walls.” The presence of graffiti on the walls was, in fact, established through the testimony of the
officer who responded to the scene.
{¶20} Mr. Myers also appears to argue that his convictions for kidnapping and abduction
are against the manifest weight of the evidence because J.B. was not restrained and her testimony
was contradicted by other evidence in the record. As noted above, J.B. testified that C.R. gave
Mr. Myers a gun and that Mr. Myers brandished the gun for approximately ninety minutes while
standing between J.B. and the front door to the apartment, thus preventing her egress. For purposes
of both R.C. 2905.01(A)(3) and R.C. 2905.02(A)(2), restraint can be accomplished by means of
“force or threat.” (Emphasis added.) R.C. 2505.02(A). Accord R.C. 2905.01(A). With respect
to the content of her eventual 911 call made after she had fled the residence, J.B. explained that
her priority at the time was to secure aid for S.M.
{¶21} Two witnesses who testified on behalf of the defense denied that anyone’s liberty
had been restrained on the evening in question. W.H.M., who along with J.B. provided a statement
to police later in the day, claimed during his testimony that he did not remember anything related
to the incident except that he was high. Another witness testified that she was in the residence
throughout the evening and did not recall seeing anyone with a gun. T.O., who is C.R.’s sister and
10
the resident of the adjoining rental unit, also testified. She provided a ride to Mr. Myers and several
other people after the incident, and T.O. testified that those individuals were emotional about
S.M.’s demise, but did not display any fear. T.O stated that she was not present during the events
at issue, however, and she specifically acknowledged that she did not know whether anyone had
been held at gunpoint.
{¶22} On the other hand, the testimony of Officer Nate Koch, who responded to the scene
and later interviewed J.B. and W.H.M., supported the details on J.B.’s testimony in some respects.
Officer Koch identified a firearm that he found in an upstairs room at the residence, and J.B. later
identified it as the weapon that Mr. Myers used. He also testified that during their interviews, both
J.B. and W.H.M. appeared to be frightened. Detective Gaetano Bremenour, who assisted with the
investigation, explained that it proved to be difficult to speak with any of the witnesses to the
events.
{¶23} With respect to his conviction for having a weapon under disability, Mr. Myers
argues that although C.R. handed him a gun, he “immediately placed the weapon on the table in
the apartment[,]” indicating that he “immediately surrendered the weapon thus making a conscious
effort and purpose to avoid having it.” These assertions are not supported by any evidence in the
record, however.
{¶24} This Court must “‘consider[] the credibility of witnesses’” as part of our manifest
weight review. Thompkins, 78 Ohio St.3d at 387, quoting Martin, 20 Ohio App.3d at 175.
Nonetheless, this Court is mindful of the well-established principle that a trier of fact enjoys the
best position to assess the credibility of witnesses. State v. Rivera, 9th Dist. Lorain No.
18CA011263, 2019-Ohio-62, ¶ 39, quoting State v. Johnson, 9th Dist. Summit No. 25161, 2010-
11
Ohio-3296, ¶ 15. Given the evidence in this case, this Court cannot conclude that this is the
exceptional case in which the evidence weighs heavily against Mr. Myers’ convictions.
{¶25} Mr. Myers’ first assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 2
APPELLANT, JACOB MYERS, WAS DENIED HIS RIGHT TO DUE PROCESS
AND OF ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH
AND FOURTEENTH AMENDMENTS OF THE UNITED STATES
CONSTITUTION AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO
CONSTITUTION BECAUSE HIS TRIAL COUNSEL PROVIDED
INEFFECTIVE ASSISTANCE.
{¶26} Mr. Myers’ second assignment of error argues that he did not receive effective
assistance of counsel. Specifically, he has argued that Counsel failed to obtain records of text
messages that would have assisted in his defense and failed to adequately communicate with him
while his case was pending.
{¶27} In order to demonstrate ineffective assistance of counsel, a defendant must show
(1) deficiency in the performance of counsel “so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment” and (2) that the errors made by
counsel were “so serious as to deprive the defendant of a fair trial[.]” Strickland v. Washington,
466 U.S. 668, 687 (1984). A defendant must demonstrate prejudice by showing that, but for
counsel’s errors, there is a reasonable possibility that the outcome of the trial would have been
different. Id. at 694.
{¶28} In a direct appeal, ineffective assistance of counsel must be demonstrated by
evidence within the record. See generally State v. Madrigal, 87 Ohio St.3d 378, 390-391 (2000).
“‘[A] claim of ineffective assistance of counsel on direct appeal cannot be premised on decisions
of trial counsel that are not reflected in the record of proceedings * * * [and] [s]peculation
regarding the prejudicial effects of counsel’s performance will not establish ineffective assistance
12
of counsel.’” State v. Zupancic, 9th Dist. Wayne No. 12CA0065, 2013-Ohio-3072, ¶ 4, quoting
State v. Leyland, 9th Dist. Summit Nos. 23833, 23900, 2008-Ohio-777, ¶ 7, citing State v. Sweeten,
9th Dist. Lorain No. 07CA009106, 2007-Ohio-6547, ¶ 10-12 and State v. Downing, 9th Dist.
Summit No. 22012, 2004-Ohio-5952, ¶ 27.
{¶29} The record on appeal does not contain any information regarding the text messages
at issue. The substance of those records is, itself, speculative. Any conclusions regarding the
performance of trial counsel with respect to those calls would also be speculative and cannot form
the basis of error on direct appeal. See, e.g., State v. Grate, 164 Ohio St.3d 9, 2020-Ohio-5584, ¶
69. See also State v. Castagnola, 9th Dist. Summit Nos. 29141, 29250, 2020-Ohio-1096, ¶ 27;
State v. Fridley, 9th Dist. Wayne No. 17AP0029, 2019-Ohio-3412, ¶ 32. Similarly, “‘a claim of
lack of communication between a defendant and his trial counsel is not one that can be borne out
by the record. It relies upon information necessarily outside the record, and is therefore not an
issue we can review on direct appeal.” State v. Lawson, 2d Dist. Greene No. 2020-CA-16, 2020-
Ohio-6852, ¶ 106, quoting State v. Watters, 2d Dist. Clark No. 2015-CA-82, 2016-Ohio-8083, ¶
27. See also State v. Consilio, 9th Dist. Summit No. 28409, 2017-Ohio-7913, ¶ 22.
{¶30} Mr. Myers’ second assignment of error is overruled.
III.
{¶31} Mr. Myers’ assignments of error are overruled. The judgment of the Wayne County
Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
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We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
LYNNE S. CALLAHAN
FOR THE COURT
HENSAL, P. J.
CARR, J.
CONCUR.
APPEARANCES:
KIMBERLY STOUT-SHERRER, Attorney at Law, for Appellant.
DANIEL R. LUTZ, Prosecuting Attorney, and JONATHAN D. HAMERS, Assistant Prosecuting
Attorney, for Appellee.