State v. Wetherby

[Cite as State v. Wetherby, 2013-Ohio-3442.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. Sheila G. Farmer, J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 12-CA-69
KARL C. WETHERBY :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Licking County
Court of Common Pleas, Case No.
10CR00616
JUDGMENT: Affirmed in part; reversed in part; and
Remanded
DATE OF JUDGMENT ENTRY: August 1, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH OSWALT DAVID SAMS
29 S. 2nd Street Box 40
Newark, OH 43055 W. Jefferson, OH 43162
[Cite as State v. Wetherby, 2013-Ohio-3442.]
Gwin, P.J.
{¶1} Appellant, Karl C. Wetherby [“Wetherby”], appeals a judgment of the
Licking County Common Pleas Court convicting him of obstructing official business
(R.C. 2921.31(A)) with a firearm specification (R.C. 2929.14(D), R.C. 2941.145),
inducing panic with a firearm specification (R.C. 2917.31(A)(3)(4)((a). R.C. 2941.145),
and aggravated menacing (R.C. 2903.21(A).
Facts and Procedural History
{¶2} On September 23, 2010, officers from the Licking County Sheriff's
Department went to Jason Lee's home at 9151 Linville Road, Newark, Ohio, to serve a
writ of possession1. Deputies spoke to Lee and explained that his property had been
sold at sheriff's sale and he needed to make arrangements to vacate. They agreed on
October 11, 2010 as the date by which Lee would vacate, but Lee stated that he was
going to hire an attorney to have the sale set aside. Wetherby is a friend of Lee’s who
was staying on the property in a camper in the driveway. (1T. at 244).
{¶3} Deputies did not return on October 11, 2010, because a court action was
pending to review the propriety of the sale. However, on October 20, 2010, the court
denied a stay on the writ of possession. Deputies again spoke with Lee at his home on
October 25, 2010, and told him he needed to vacate on October 27, 2010.
{¶4} At about 9:30 a.m. on October 27, deputies arrived at Lee's home. Lee
was standing on the front sidewalk. He yelled something to the officers about having
sold his house to someone else and told them to leave. Lee then ran in the front door of
1
See, State v. Lee, 5th Dist. No. 11-CA-0076, 2012-Ohio-2856.
Licking County, Case No. 12-CA-69 3
the home. Officers followed Lee to the front porch but Lee would not come out or let
them in the house. He yelled through the front door that he was not coming out.
{¶5} Deputies returned to their vehicle to telephone Lee’s attorney, and called
their supervisor, Captain Bruce Myers. Deputy Tim Caldwell went around to the back
door to attempt to talk to Lee. The blinds covering the French doors on the back porch
flew open and the faces of Lee and another man, later identified as Wetherby, appeared
against the window. The two men began yelling and screaming at Deputy Caldwell. The
corners of their mouths were “full of white stuff” from yelling and screaming and they
were spitting on the window.
{¶6} When Captain Bruce Myers arrived, he went to the back door to speak
with the pair. He advised Lee through the door that Lee's attorney was on his way.
Captain Myers saw an arm and a hand come around the side of the blinds covering the
door. The hand was holding a pistol.
{¶7} Much of the staff of the Sheriff's Department had been dispatched to an
incident involving a van, containing a pipe bomb, which crashed into a church following
a pursuit earlier that morning. At least 25 employees of the Sheriff's Department and fire
department were dispatched to Lee's home, including the SWAT team and the hostage
negotiating team.
{¶8} Lee would not speak to the hostage negotiators through a “throw phone,”
which is the preferred method of communicating so that all communications can be
monitored by the police. However, he agreed to speak to Misty Van Balen through a cell
phone.
Licking County, Case No. 12-CA-69 4
{¶9} Lee repeatedly told her that he wanted to die, that he was going to kill
whoever entered the residence first and then kill himself. He also told her that he and
Wetherby had a plan to kill each other. He told her that he could see the officers through
the window and could take them out. He intended to die and take out as many people
as he could. Lee would speak calmly with her for a while, then start yelling and hang up.
During the telephone negotiations, Wetherby can be heard yelling in the background.
Wetherby is speaking so loudly that the deputy told Lee to “tell him to shut up. I can’t
hear you.” (1T. at 244-245). Throughout the negotiations, Lee was asking Wetherby for
his advice. Several times Lee halted the discussions in order to seek Wetherby’s
advice. (1T. at 245).
{¶10} Lee and Wetherby informed the negotiating deputies that they wanted to
speak to the news media. Accordingly, a meeting was arranged with a local news team.
Lee was afraid to leave the residence. At about 4:15 p.m., Wetherby agreed to come
out unarmed and speak to the media. Wetherby was taken into custody without incident
at the conclusion of the interview with the news team. Lee came out of the house at
6:30 p.m.
{¶11} During a subsequent search of the house, officers found three firearms in
a cabinet in a basement office, a loaded firearm in a garage, a revolver in the first floor
dining room, a rifle leaning against an end table in the living room, and a rifle in the
corner of a first floor bathroom.
{¶12} The jury convicted Wetherby on all counts. At sentencing, the trial court
merged the firearm specifications. The court further merged the Obstructing Official
Business contained in count one with the Inducing Panic charge found in count two. The
Licking County, Case No. 12-CA-69 5
state elected to proceed on count one for sentencing. The court sentenced Wetherby to
an aggregate sentence of three years and six months.
Assignments of Error
{¶13} Wetherby raises four assignments of error:
{¶14} “I. THE CONVICTIONS WERE BASED ON INSUFFICIENT EVIDENCE
AND WERE OTHERWISE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE
CONTRARY TO OHIO LAW AND THE STATE AND FEDERAL CONSTITUTIONS.
{¶15} “II. APPELLANT'S ACTIONS WERE PRIVILEGED UNDER OHIO LAW
AND THE STATE AND FEDERAL CONSTITUTIONS AND THUS COULD NOT FORM
THE BASIS FOR CRIMINAL LIABILITY THEREUNDER.
{¶16} “III. THE JURY INSTRUCTIONS WERE PREJUDICIALLY INSUFFICIENT
UNDER OHIO LAW AND THE STATE & FEDERAL CONSTITUTIONS.
{¶17} “IV. APPELLANT WAS PREJUDICIALLY DENIED THE EFFECTIVE
ASSISTANCE OF COUNSEL UNDER THE STATE AND FEDERAL
CONSTITUTIONS.”
I.
{¶18} In his first assignment of error, Wetherby argues the jury’s findings of
guilty are against the manifest weight of the evidence and was not supported by
sufficient evidence.
{¶19} Our review of the constitutional sufficiency of evidence to support a
criminal conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979), which requires a court of appeals to determine whether
“after viewing the evidence in the light most favorable to the prosecution, any rational
Licking County, Case No. 12-CA-69 6
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Id.; see also McDaniel v. Brown, 558 U.S. 120, 130 S.Ct. 665, 673, 175 L.Ed.2d
582(2010) (reaffirming this standard); State v. Fry, 125 Ohio St.3d 163, 926 N.E.2d
1239, 2010–Ohio–1017, ¶ 146; State v. Clay, 187 Ohio App.3d 633, 933 N.E.2d 296,
2010–Ohio–2720, ¶ 68.
{¶20} Weight of the evidence addresses the evidence's effect of inducing belief.
State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), superseded
by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio
St.3d 89, 684 N.E.2d 668, 1997-Ohio–355. Weight of the evidence concerns “the
inclination of the greater amount of credible evidence, offered in a trial, to support one
side of the issue rather than the other. It indicates clearly to the jury that the party
having the burden of proof will be entitled to their verdict, if, on weighing the evidence in
their minds, they shall find the greater amount of credible evidence sustains the issue
which is to be established before them. Weight is not a question of mathematics, but
depends on its effect in inducing belief.” (Emphasis sic.) Id. at 387, 678 N.E.2d 541,
quoting Black's Law Dictionary (6th Ed. 1990) at 1594.
{¶21} When a court of appeals reverses a judgment of a trial court on the basis
that the verdict is against the weight of the evidence, the appellate court sits as a
“’thirteenth juror’” and disagrees with the fact finder’s resolution of the conflicting
testimony. Id. at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102
S.Ct. 2211, 72 L.Ed.2d 652 (1982). However, an appellate court may not merely
substitute its view for that of the jury, but must find that “‘the jury clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and
Licking County, Case No. 12-CA-69 7
a new trial ordered.’” State v. Thompkins, supra, 78 Ohio St.3d at 387, quoting State v.
Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist. 1983).
Accordingly, reversal on manifest weight grounds is reserved for “‘the exceptional case
in which the evidence weighs heavily against the conviction.’” Id.“[I]n determining whether the judgment below is manifestly against
the weight of the evidence, every reasonable intendment and every
reasonable presumption must be made in favor of the judgment and the
finding of facts. * * *
“If the evidence is susceptible of more than one construction, the
reviewing court is bound to give it that interpretation which is consistent
with the verdict and judgment, most favorable to sustaining the verdict and
judgment.”
Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.
3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).
1. Obstructing Official Business.
{¶22} R.C. 2921.31, Obstructing Official Business provides,
(A) No person, without privilege to do so and with purpose to
prevent, obstruct, or delay the performance by a public official of any
authorized act within the public official's official capacity, shall do any act
that hampers or impedes a public official in the performance of the public
official's lawful duties.
{¶23} In the case at bar, Licking County Sheriff s officers were attempting to
enforce a Writ of Possession resulting from a foreclosure action. No evidence was
Licking County, Case No. 12-CA-69 8
presented during trial that Wetherby had an ownership interest in the subject property.
No evidence was presented that Wetherby had any cognizable interest in the property
pursuant to any written agreement. The only evidence presented is that Lee permitted
Wetherby to stay in a camper on the property. No evidence was presented as to the
ownership of the camper. Thus, the evidence presented during trial indicates that
Wetherby was no more than a guest of Lee.
{¶24} In the case at bar, Lee was to vacate the premises taking whatever he
would like. The new owners gave Lee and additional thirty days to remove the
remainder of his property. (1T. at 116). Further, Lee was aware that his application for a
stay had been denied. (Id. at 120 -121). The evidence in this case included copies of the
Writ of Possession as well as the civil court's judgment entry refusing to stay that Writ.
Those documents clearly show that Lee was a party to that foreclosure action.
Accordingly, Wetherby as a mere guest was not privileged to use force or threaten the
use of force to resist the Licking County Sheriff’s officers from enforcing a Writ of
Possession resulting from a foreclosure action.
{¶25} In the case at bar, the state presented evidence that, at the very least,
Wetherby aided and abetted Lee in preventing the deputies from the performance of
their lawful duties.
{¶26} Generally, a criminal defendant has aided or abetted an offense if he has
supported, assisted, encouraged, cooperated with, advised, or incited another person to
commit the offense. See, State v. Johnson, 93 Ohio St.3d 240, 754 N.E.2d 796 (2001),
syllabus. “‘Participation in criminal intent may be inferred from presence, companionship
and conduct before and after the offense is committed.'" State v. Mendoza, 137 Ohio
Licking County, Case No. 12-CA-69 9
App.3d 336, 342, 738 N.E.2d 822 (2000), quoting State v. Stepp, 117 Ohio App.3d 561,
568-569, 690 N.E.2d 1342 (1997).
{¶27} R.C. 2923.03 provides:
(A) No person, acting with the kind of culpability required for the
commission of an offense, shall do any of the following:
***
(2) Aid or abet another in committing the offense.
{¶28} R.C. 2923.03(F) states, "A charge of complicity may be stated in terms of
this section, or in terms of the principal offense."
The Supreme Court of Ohio clarified Ohio's position on the issue of
complicity in State v. Perryman (1976), 49 Ohio St. 2d 14, vacated in part
on other grounds sub nom, Perryman v. Ohio (1978), 438 U.S. 911. The
court unequivocally approved of the practice of charging a jury regarding
aiding and abetting even if the defendant was charged in the indictment as
a principal. Id. The court held that the indictment as principal performed
the function of giving legal notice of the charge to the defendant. Id.Therefore, if the facts at trial reasonably supported the jury instruction on
aiding and abetting, it is proper for the trial judge to give that charge.
Perryman, supra at 27, 28.
State v. Payton, 8th Dist. Nos. 58292, 58346, 1990 WL 48952(Apr. 19, 1990).
{¶29} R.C. 2923.03(F) adequately notifies defendants that the jury may be
instructed on complicity, even when the charge is drawn in terms of the principal
offense. United States v. McGee 529 F.3d 691, 695 (6th Cir 2008); State v. Herring, 94
Licking County, Case No. 12-CA-69 10
Ohio St.3d 246, 251 762 N.E.2d 940, 949(2002); State v. Keenan, 81 Ohio St.3d 133,
151, 689 N.E.2d 929, 946(1998); State v. Templeton, 5th Dist. No. 2006-CA-33, 2007-
Ohio-1148, ¶ 63.
{¶30} In this case, while inside the home, Lee displayed a firearm to the officers
outside. The pair further made threats to shoot the officers and themselves. The
deputies remained on the scene from 9:30 a.m. to at least 6:30 p.m.
{¶31} Viewing the evidence in a light most favorable to the prosecution, we
conclude that a reasonable person could have found beyond a reasonable doubt that, at
the very least, Wetherby aided and abetted Lee in committing the crime of obstructing
official business. We hold, therefore, that the state met its burden of production
regarding each element of the crimes and, accordingly, there was sufficient evidence to
support Wetherby’s conviction.
2. Inducing Panic.
{¶32} R.C. 2917.31 Inducing Panic, provides,
(A) No person shall cause the evacuation of any public place, or
otherwise cause serious public inconvenience or alarm, by doing any of
the following:
(1) Initiating or circulating a report or warning of an alleged or
impending fire, explosion, crime, or other catastrophe, knowing that such
report or warning is false;
(2) Threatening to commit any offense of violence;
(3) Committing any offense, with reckless disregard of the likelihood
that its commission will cause serious public inconvenience or alarm.
Licking County, Case No. 12-CA-69 11
{¶33} At the time of the offense, a violation of this section that results in
economic harm of $500.00 or more but less than $5,000.00 inducing panic was
classified as a fifth degree felony. R.C. 2917.31(C)(4).2
{¶34} R.C. 2917.31(E)(1)(b) specifically includes within "economic harm", "All
costs incurred by the state or any political subdivision as a result of, or in making any
response to, the criminal conduct that constituted the violation of this section or section
2917.32 of the Revised Code, including, but not limited to, all costs so incurred by any
law enforcement officers, firefighters, rescue personnel, or emergency medical services
personnel of the state or the political subdivision."
{¶35} Officer Jay Cook testified that the total cost to respond to the situation that
Lee and Wetherby brought about was over $7,000. (1T. at 323.) This figure was
documented in an accounting of overtime for 29 officers who were involved in some
capacity or another with this matter, as well as jail personnel who had to be called in to
"cover" for jail deputies that were on the SWAT Team or had additional duties
associated with this 10-hour standoff.
{¶36} In State v. Kristofferson, 1st Dist. Hamilton App. No. C-010322, 2002-
Ohio-712, the defendant appealed his R.C. 2917.31(A)(3) inducing panic conviction and
argued that the evidence was insufficient to show the serious public inconvenience or
alarm element. In Kristofferson, the defendant and his wife had argued and he stated
that he would be better off dead. He then retrieved a handgun and locked himself in a
bedroom. His wife and son left the home and called the police. The police requested the
2
This statue was amended September 30, 2011 to increase the amounts to $1,000.00 and
$7,500.00, respectively.
Licking County, Case No. 12-CA-69 12
defendant to come outside and after a brief two or three minute exchange, the
defendant surrendered.
{¶37} The appellate court concluded that the evidence failed to show that the
defendant's conduct caused serious public inconvenience or alarm. Instead, “[h]is
conduct involved his family and occurred within the privacy of his own home. It was not
the kind of conduct that the inducing-panic statute was intended to prohibit, such as
causing an airport terminal or other public place to be evacuated by sending the
customers to scurry for the exits.” The court further determined that “[t]he officers, acting
in their official capacity, * * * could not have been inconvenienced within the
contemplation of R.C. 2917.31(A), simply because they had responded to his residence
as their duties required them to do.”
{¶38} In State v. Campbell, 195 Ohio App.3d 9, 2011-Ohio- 3458, 958 N.E.2d
622(1st Dist.), although eight police officers were required to respond to a domestic
dispute when the defendant refused to open the door to his apartment, there was no
evidence the other tenants in the building were stirred, and the police officers could not
be inconvenienced as they were acting in their official capacity.
{¶39} In State v. Isham, 1st. Dist. Hamilton App. No. C-020065, 2002-Ohio-
5815, the First District reversed the trial court's judgment of conviction on an inducing-
panic charge against the defendant because the state had not presented sufficient
evidence to support the elements of inducing panic. The court explained that there had
been no evidence of an alleged offense of violence since there was no evidence that
the defendant had threatened anyone or pointed the gun at anyone. In addition, the
court went on to state that there had likewise been no evidence that any offense of
Licking County, Case No. 12-CA-69 13
violence (if there had been one) caused the evacuation of the building, because the
alleged offense of violence occurred after the building had already been evacuated.
Accord, In re J.C. 11th Dist. Lake App. No. 2012-L-083, 2013-Ohio-1292(Mar. 29,
2013), ¶20 (“mere public awareness of an event is not sufficient to satisfy the element of
serious public inconvenience or alarm; there must be some type of disruption,
discomfort, distress, or fear caused by one or more of the three predicate actions found
in R.C. 2917.31(A)(1)-(A)(3).”).
{¶40} In the case at bar, there is no evidence that Wetherby’s actions in concert
with Lee or alone caused serious public inconvenience or alarm. Officers acting in their
official capacity could not have been inconvenienced within the contemplation of R.C.
2917.31(A), simply because they had responded to the residence, as their duties
required them to do.
{¶41} We hold, therefore, that the state failed to meet its burden of production
regarding each element of the crimes and, accordingly, there was insufficient evidence
to support Wetherby’s conviction for inducing panic.
{¶42} Section 3(B) (2), Article IV of the Ohio Constitution and R.C. 2953.07, give
an appellate court the power to affirm, reverse, or modify the judgment of an inferior
court. Accordingly, the conviction and sentence on Counts Two, Inducing Panic is
reversed, and this case is remanded for proceedings in accordance with our opinion
and the law.
3. Aggravated Menacing.
{¶43} Wetherby was also convicted of aggravated menacing. R.C. 2903.21,
aggravated menacing provides,
Licking County, Case No. 12-CA-69 14
(A) No person shall knowingly cause another to believe that the
offender will cause serious physical harm to the person or property of the
other person, the other person's unborn, or a member of the other
person's immediate family.
{¶44} The crime of aggravated menacing is triggered by a threat that intimidates
or causes fear or apprehension by the recipient. State v. Schwartz, 77 Ohio App.3d 484,
602 N.E.2d 671(12th Dist. 1991). Such threats are not among the class of utterances
that are protected by the First Amendment. Mozzochi v. Borden, 959 F.2d 1174 2nd Cir.
1992); United States v. Khorrami, 895 F.2d 1186(7th Cir. 1990); United States v.
Bellrichard, 994 F.2d 1318(8th Cir. 1993).
{¶45} In State v. Millikin, 1st Dist. Hamilton App. Nos. C030825, C-030826,
2004-Ohio-4507, the defendant was angry that motorists would move and drive around
the barricades placed in front of his home because of road construction. The defendant
parked his and another person's vehicles in front of his house, blocking the street. The
police were called, and the defendant was told to move the vehicles. The defendant was
angry that the police were not enforcing the closing of the road. The state presented
evidence that when the police arrived for the second time, the defendant appeared at
the front door of his house, angry and intoxicated, carrying a shotgun and having a
handgun tucked in the waistband of his pants. The appellate court upheld the
defendant's conviction for aggravated menacing, stating that “Even though Millikin never
pointed a gun at the police officers and did not verbally threaten them, in the entire
context of the evening, it was reasonable to conclude that the police officers felt
Licking County, Case No. 12-CA-69 15
threatened and were fearful that Millikin would attempt to cause serious physical harm
to them.” Id. at ¶23.
{¶46} In State v. Terzo, 12th Dist. Butler App. No. CA2002-08-194, 2003-Ohio-
5983, a Fairfield police officer responded to a report that a female was brandishing a
firearm and trying to set fire to clothing she had thrown in the street. When the officer
arrived, he observed the female sitting on the front porch holding a shotgun. The officer
testified that the female raised the shotgun and aimed it at the officer. He testified that
he drew his service revolver, fearing that the female intended to shoot. The female went
back inside the house, put the gun down, and surrendered herself immediately. The
appellate court upheld Terzo's conviction for aggravated menacing, stating that “The
threat need not be verbalized; rather, the threat can be implied by the offender's actions.
City of Niles v. Holloway (Oct. 3, 1997), Trumbull App. No. 96-T-5533, 1997 Ohio App.
LEXIS 4517, 1997 WL 665974 citing State v. Hoaglin (Mar. 25, 1993), Van Wert App.
No. 15-92-15, 1993 Ohio App. LEXIS 1718, 1993 WL 85643. And finally, while appellant
[Terzo] also argues that she would have been unable to carry out the threat because
the gun was not loaded, neither the intent nor the ability to carry out the threat is an
element of the offense. Dayton v. Dunnigan (1995), 103 Ohio App.3d 67, 658 N.E.2d
806.” Id. at ¶18.
{¶47} In the case at bar, evidence was presented that the deputies had
concerns for their safety. First, officers retreated from the front of the home where they
were exposed when co-defendant Lee brandished a firearm. The officer who observed
the gun being brandished retreated to a "safer location.” He also yelled to his fellow
officer that he saw a gun and told him to get off the porch. Moreover, a tactical, or
Licking County, Case No. 12-CA-69 16
SWAT team, was called in and a squad/medic was kept on stand-by throughout the
ordeal.
{¶48} Viewing the evidence in a light most favorable to the prosecution, we
conclude that a reasonable person could have found beyond a reasonable doubt that, at
the very least, Wetherby aided and abetted Lee in committing the crime of aggravated
menacing. We hold, therefore, that the state met its burden of production regarding
each element of the crimes and, accordingly, there was sufficient evidence to support
Wetherby’s conviction.
{¶49} Ultimately, “the reviewing court must determine whether the appellant or
the appellee provided the more believable evidence, but must not completely substitute
its judgment for that of the original trier of fact ‘unless it is patently apparent that the fact
finder lost its way.’” State v. Pallai, 7th Dist. No. 07 MA 198, 2008-Ohio-6635, ¶31,
quoting State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964, ¶ 81.
In other words, “[w]hen there exist two fairly reasonable views of the evidence or two
conflicting versions of events, neither of which is unbelievable, it is not our province to
choose which one we believe.” State v. Dyke, 7th Dist. No. 99 CA 149, 2002-Ohio-1152,
at ¶ 13, citing State v. Gore (1999), 131 Ohio App.3d 197, 201, 722 N.E.2d 125.
{¶50} The weight to be given to the evidence and the credibility of the witnesses
are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d
212(1967), paragraph one of the syllabus; State v. Hunter, 131 Ohio St.3d 67, 2011-
Ohio-6524, 960 N.E.2d 955, ¶118. Accord, Glasser v. United States, 315 U.S. 60, 80,
62 S.Ct. 457, 86 L.Ed. 680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct.
843, 74 L.Ed.2d 646 (1983). The jury was free to accept or reject any and all of the
Licking County, Case No. 12-CA-69 17
evidence offered by the parties and assess the witness’s credibility. "While the jury may
take note of the inconsistencies and resolve or discount them accordingly * * * such
inconsistencies do not render defendant's conviction against the manifest weight or
sufficiency of the evidence". State v. Craig, 10th Dist. No. 99AP-739, 1999 WL 29752(Mar 23, 2000) citing State v. Nivens, 10th Dist. No. 95APA09-1236, 1996 WL 284714(May 28, 1996). Indeed, the [judge] need not believe all of a witness' testimony, but may
accept only portions of it as true. State v. Raver, Franklin App. No. 02AP-604, 2003-
Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964); State
v. Burke, 10th Dist. No. 02AP-1238, 2003-Ohio-2889, citing State v. Caldwell (1992), 79
Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Although the evidence may have
been circumstantial, we note that circumstantial evidence has the same probative value
as direct evidence. State v. Jenks, supra.
“[I]n determining whether the judgment below is manifestly against
the weight of the evidence, every reasonable intendment and every
reasonable presumption must be made in favor of the judgment and the
finding of facts. * * *
“If the evidence is susceptible of more than one construction, the
reviewing court is bound to give it that interpretation which is consistent
with the verdict and judgment, most favorable to sustaining the verdict and
judgment.”
Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.
3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).
Licking County, Case No. 12-CA-69 18
{¶51} In Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E. 2d 118 (1954), the
Supreme Court further cautioned,
The mere number of witnesses, who may support a claim of one or
the other of the parties to an action, is not to be taken as a basis for
resolving disputed facts. The degree of proof required is determined by
the impression which the testimony of the witnesses makes upon the trier
of facts, and the character of the testimony itself. Credibility, intelligence,
freedom from bias or prejudice, opportunity to be informed, the disposition
to tell the truth or otherwise, and the probability or improbability of the
statements made, are all tests of testimonial value. Where the evidence is
in conflict, the trier of facts may determine what should be accepted as the
truth and what should be rejected as false. See Rice v. City of Cleveland,
114 Ohio St. 299, 58 N.E.2d 768.
161 Ohio St. at 477-478. (Emphasis added).
{¶52} We find that this is not an “‘exceptional case in which the evidence weighs
heavily against the conviction.’” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d
541 quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. The jury was in the best
position to evaluate this competent, credible evidence, and we will not substitute our
judgment for that of the trier of fact. The jury neither lost their way nor created a
miscarriage of justice in convicting Wetherby of the charges of obstructing official
business with a firearm specification and aggravated menacing.
II.
Licking County, Case No. 12-CA-69 19
{¶53} In his second assignment of error, Wetherby incorporates the arguments
he previously made with respect to this first assignment of error. He contends in this
assignment of error that his conduct was "privileged."
{¶54} Wetherby's claim is essentially one of defense of property. Ohio law does
not provide appellant the right to defend his property by threatening to shoot police
officers who are there to execute a writ of possession issued by a court of law simply
because he believes there were errors made in the civil proceeding that led to the
sheriff's sale of his property. State v. Lee, 5th Dist. No. 11-CA-0076, 2012-Ohio-2856, ¶
43.
{¶55} In State v. Burns, 2nd Dist. No. 22674, 2010–Ohio–2831, the appellant
argued that her conviction for obstructing official business was against the manifest
weight of the evidence because the officer whom she impeded in his efforts to search
her mother's home was there unlawfully, without a search warrant. The court rejected
this argument, holding:
Appellant contests that Officer Wolpert was performing “lawful
duties” when he entered her mother's house prior to obtaining a search
warrant. Although an unlawful entry may result in the exclusion of
evidence, “absent bad faith on the part of a law enforcement officer, an
occupant cannot obstruct the officer in the discharge of his duty, whether
or not the officer's actions are lawful under the circumstances.” State v.
Stevens, Morgan App. No. 07–CA–0004, 2008–Ohio–6027, ¶ 37, quoting
State v. Paumbaur (1984), 9 Ohio St.3d 136, 138. There is no evidence of
“bad faith” on the part of Officer Wolpert. He explained that his reason for
Licking County, Case No. 12-CA-69 20
entering the home was to ensure the safety of all concerned and to ensure
that evidence could not be removed or destroyed. Even if Officer Wolpert's
entry had been unlawful under these particular circumstances, absent
evidence of bad faith, Appellant was not justified in obstructing his efforts
to secure the residence.” Id. at ¶ 19.
{¶56} In the case at bar, there is absolutely no evidence that any of the officers
acted in bad faith. To the contrary, the evidence unequivocally established that the
sheriff's department had a writ of possession and a judgment of the court, dated
October 20, 2010, denying Lee's motion for a stay on the writ of possession. Further,
while a homeowner may say almost anything to officers in an attempt to persuade them
not to enter, the Fourth Amendment does not grant a homeowner the right to use deadly
force to resist an unlawful entry. State v. McCoy, 2nd Dist. No. 22479, 2008–Ohio–
5648, ¶ 19. In the instant case, Wetherby's right to resist entry, even if the police were
acting in bad faith, did not extend to a threat of deadly force and show of a firearm. Lee,
supra at ¶ 47.
{¶57} Wetherby’s second assignment of error is overruled.
III.
{¶58} In his third assignment of error, Wetherby claims the trial court erred in not
giving complete jury instructions. Specifically, Wetherby contends that it was plain error
for the court not to instruct the jury on privilege, self-defense and imminent fear of
serious physical harm with respect to aggravated menacing.
{¶59} The giving of jury instructions is within the sound discretion of the trial
court and will not be disturbed on appeal absent an abuse of discretion. State v.
Licking County, Case No. 12-CA-69 21
Martens, 90 Ohio App.3d 338, 629 N.E.2d 462(3rd Dist. 1993). In order to find an abuse
of that discretion, we must determine the trial court's decision was unreasonable,
arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140(1983) Jury instructions must be
reviewed as a whole. State v. Coleman, 37 Ohio St.3d 286, 525 N.E.2d 792(1988).
{¶60} Crim.R. 30(A) governs instructions and states as follows:
At the close of the evidence or at such earlier time during the trial as
the court reasonably directs, any party may file written requests that the
court instruct the jury on the law as set forth in the requests. Copies shall
be furnished to all other parties at the time of making the requests. The
court shall inform counsel of its proposed action on the requests prior to
counsel's arguments to the jury and shall give the jury complete
instructions after the arguments are completed. The court also may give
some or all of its instructions to the jury prior to counsel's arguments. The
court need not reduce its instructions to writing.
On appeal, a party may not assign as error the giving or the failure
to give any instructions unless the party objects before the jury retires to
consider its verdict, stating specifically the matter objected to and the
grounds of the objection. Opportunity shall be given to make the objection
out of the hearing of the jury.
{¶61} Wetherby did not file a written request for specific jury instructions, and did
not object to the trial court's jury instructions. Based upon his failure to proffer
instructions or object to the instructions and bring the issue to the trial court's attention
Licking County, Case No. 12-CA-69 22
for consideration, we must address this assignment under the plain error doctrine.
Therefore, for this court to reverse Wetherby’s convictions, we must find that the trial
court's procedure regarding its jury instructions was prejudicial. Crim.R. 52(B).
[A]n appellate court may, in its discretion, correct an error not
raised at trial only where the appellant demonstrates that (1) there is an
error; (2) the error is clear or obvious, rather than subject to reasonable
dispute; (3) the error affected the appellant’s substantial rights, which in
the ordinary case means it affected the outcome of the district court
proceedings; and (4) the error seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.
United States v. Marcus, 560 U.S. 258, 130 S.Ct. 2159, 2164,176 L.Ed.2d 1012(Internal quotation marks and citations omitted). The Ohio Supreme Court pertinently
addressed when structural error analysis should be used in State v. Perry,
We emphasize that both this court and the United States Supreme
Court have cautioned against applying a structural-error analysis where,
as here, the case would be otherwise governed by Crim.R. 52(B) because
the defendant did not raise the error in the trial court. See Hill, 92 Ohio
St.3d at 199, 749 N.E.2d 274; Johnson, 520 U.S. at 466, 117 S.Ct. 1544,
137 L.Ed.2d 718. This caution is born of sound policy. For to hold that an
error is structural even when the defendant does not bring the error to the
attention of the trial court would be to encourage defendants to remain
silent at trial only later to raise the error on appeal where the conviction
would be automatically reversed. We believe that our holdings should
Licking County, Case No. 12-CA-69 23
foster rather than thwart judicial economy by providing incentives (and not
disincentives) for the defendant to raise all errors in the trial court-where,
in many cases, such errors can be easily corrected.
101 Ohio St.3d 118, 802 N.E.2d 643, 2004-Ohio-297, ¶23. Thus, the defendant bears
the burden of demonstrating that a plain error affected his substantial rights and, in
addition that the error seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings. United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123
L.Ed.2d 508(1993); State v. Perry, 101 Ohio St.3d at 120, 802 N.E.2d 643. Even if the
defendant satisfies this burden, an appellate court has discretion to disregard the error.
State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240(2002); State v. Long, 53 Ohio
St.2d 91, 372 N.E.2d 804(1978), paragraph three of the syllabus; Perry, supra, at 118,
802 N.E.2d at 646.
{¶62} Under the circumstances of the case at bar, there is nothing in the record
to show that Wetherby was prejudiced. As we discussed in our disposition of
Wetherby’s second assignment of error, neither Wetherby nor Lee’s actions were
privileged and neither was entitled to use force.
{¶63} Aggravated menacing does not require an imminent fear of serious
physical harm as suggested by Wetherby. Neither the intent of a defendant to carry out
his threat nor his ability to do so are elements of the offense of aggravated menacing.
Dayton v. Dunnigan, 103 Ohio App.3d 67, 71, 658 N.E.2d 806(2nd Dist. 1995). Even a
conditional threat can constitute a violation of the menacing laws. State v. Collie, 108
Ohio App.3d 580, 582, 671 N.E.2d 338(1st Dist. 1996). What is necessary to establish
the offense of menacing is the victim's subjective belief that the defendant can cause
Licking County, Case No. 12-CA-69 24
physical harm to herself, her immediate family, or her property. State v. Klempa, 7th
Dist. Belmont App. No. 01-BA-63, 2003-Ohio-3482, ¶ 24.
{¶64} Wetherby’s third assignment of error is overruled.
IV.
{¶65} In his fourth assignment of error, Wetherby argues that he was denied
effective assistance of counsel. Specifically, Wetherby claims his trial counsel was
ineffective for failing to request jury instructions on privilege and failing to argue that the
evidence was insufficient.
{¶66} A claim of ineffective assistance of counsel requires a two-prong analysis.
The first inquiry in whether counsel's performance fell below an objective standard of
reasonable representation involving a substantial violation of any of defense counsel's
essential duties to appellant. The second prong is whether the appellant was prejudiced
by counsel's ineffectiveness. Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122
L.Ed.2d 180(1993); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373(1989).
{¶67} In determining whether counsel's representation fell below an objective
standard of reasonableness, judicial scrutiny of counsel's performance must be highly
deferential. Bradley, 42 Ohio St.3d at 142. Because of the difficulties inherent in
determining whether effective assistance of counsel was rendered in any given case, a
strong presumption exists that counsel's conduct fell within the wide range of
reasonable, professional assistance. Id.
{¶68} In order to warrant a reversal, the appellant must additionally show he was
prejudiced by counsel's ineffectiveness. Prejudice warranting reversal must be such that
Licking County, Case No. 12-CA-69 25
"there is a reasonable probability that, but for counsel's unprofessional errors, the result
of the proceedings would have been different.” Strickland, 466 U.S. at 694. A court
making the prejudice inquiry must ask if the defendant has met the burden of showing
that the decision reached would "reasonably likely been different" absent the errors.
Strickland, 466 U. S. 695, 696. A reasonable probability is a probability sufficient to
undermine confidence in the outcome. Strickland, supra; Bradley, supra.
{¶69} The claims raised by Wetherby do not rise to the level of prejudicial error
necessary to find that he was deprived of a fair trial. Having reviewed the record that
Wetherby cites in support of his claim that he was denied effective assistance of
counsel, we find Wetherby was not prejudiced by defense counsel’s representation of
him. The result of the trial was not unreliable nor were the proceedings fundamentally
unfair because of the performance of defense counsel. Wetherby has failed to
demonstrate that there exists a reasonable probability that, had trial counsel requested
a jury instruction on privilege and argued insufficient evidence as he has suggested the
result of the trial would have changed. As we have noted, any error in the procedure
employed by trial counsel was harmless beyond a reasonable doubt.
{¶70} Wetherby’s fourth assignment of error is overruled.
Licking County, Case No. 12-CA-69 26
{¶71} The judgment of the Licking County Court of Common Pleas is affirmed in
part and reversed in part, and this case is remanded for proceedings in accordance with
our opinion and the law.
By Gwin, P.J., and
Baldwin, J., concur;
Farmer, J., dissents
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. SHEILA G. FARMER
_________________________________
HON. CRAIG R. BALDWIN
WSG:clw0722
Licking County, Case No. 12-CA-69 27
Farmer, J., dissenting
{¶72} I respectfully dissent from the majority's view in Assignment of Error I as
to the lack of evidence that appellant violated R.C. 2917.31, inducing panic.
{¶73} I would conclude that the jury, as the trier of facts, had sufficient evidence
to determine that appellant's actions violated R.C. 2917.31. Deputy Misty Van Balen
testified while she was speaking to Lee on the cell phone, appellant was yelling in the
background and "that person's, you know, yelling the same thing***'this isn't going to
end well.' " T. at 244. Deputy Van Balen explained that at times she spoke directly to
appellant on the cell phone. T. at 245-246. She testified to the following (T. at 246):
"they [appellant and Lee] would tell us that we needed to leave, and if they
didn't leave, that somebody was going to die. They intended to die that
day; that if the case didn't - - if we didn't close things the way they
intended, then they weren't leaving the house except for in body bags.
Repeatedly told us that they were, exceptionally, that they were going to
kill the first officers through the door, and then they were going to kill each
other or they were going to kill themselves. Mr. Wetherby told me at one
point in time during the conversation he would rather see Mr. Lee dead
than leave the house.
{¶74} Deputy Van Balen further testified (T. at 247-248):
They would tell me that they could, at various times, they could see
persons that were stationed on the perimeter, and they had told me that
they were well armed, and that they intended to shoot the first three
officers through the door and then they were going to shoot themselves.
Licking County, Case No. 12-CA-69 28
They told me if we gassed the house, they were going to just start
shooting at random, and then they were going to shoot themselves. They
told me, at one time, that they had a plan to shoot each other. That was
going to be their suicide pact, and they just kept reiterating that people
were going to die, and they were going to take as many as they could.
{¶75} Deputy Randy Thorp testified to "the instability of the scene and the
danger that it presented to the public in that area along Linnville Road and so forth." T.
at 173.
{¶76} I would find appellant's actions, coupled with the presence of weapons in
appellant's possession, to be sufficient to meet the quantum of proof necessary for a
conviction of R.C. 2917.31.
{¶77} In addition, there was ample evidence of the economic harm under R.C.
2917.31(E)(1)(b). T. at 322-323; State's Exhibit 14.
{¶78} I would affirm appellant's conviction for inducing panic.
___________________________________
HON. SHEILA G. FARMER
[Cite as State v. Wetherby, 2013-Ohio-3442.]
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
KARL C. WETHERBY :
:
:
Defendant-Appellant : CASE NO. 12-CA-69
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Licking County Court of Common Pleas is affirmed in part and reversed in part, and
this case is remanded for proceedings in accordance with our opinion and the law.
Costs divided equally between the parties.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. SHEILA G. FARMER
_________________________________
HON. CRAIG R. BALDWIN