State v. Martinez

[Cite as State v. Martiniez, 2022-Ohio-1736.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Earle E. Wise, Jr., P.J.
Plaintiff-Appellee : Hon. W. Scott Gwin, J.
: Hon. William B. Hoffman, J.
-vs- :
:
MALIK MARTINEZ - JOE HALL : Case No. 2021CA00153
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Municipal Court,
Case No. 2021 CRB 2582
JUDGMENT: Affirmed
DATE OF JUDGMENT: May 23, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
TARYN A. DOUGLAS BERNARD L. HUNT
218 Cleveland Avenue SW 2395 McGinty Road NW
Canton, OH 44701-4218 North Canton, OH 44720
Stark County, Case No. 2021CA00153 2
Wise, Earle, P.J.
{¶ 1} Defendant-Appellant Malik Hall appeals the November 18, 2021 judgment
of the Canton Municipal Court finding him guilty of one count of inducing panic following
a jury trial. Plaintiff-Appellee is the city of Canton.
Facts and Procedural History
{¶ 2} On October 28, 2021, Canton Police Officer Kim Elliott was driving down
Tuscarawas Street West in Canton, Ohio when he was flagged down by a male
pedestrian. Elliott stopped and the man pointed behind Elliott, advising there was a man
walking down the street with an AK-47. Elliott looked in his rearview mirror and saw
appellant walking in the opposite direction with something in his hand. Elliott contacted
dispatch and advised he was going to investigate.
{¶ 3} While that was happening, Canton police 911 dispatch received several
calls regarding appellant walking down Tuscarawas Street waiving around two weapons
and pointing them at passing traffic. One couple reported they saw appellant climb onto
a tree stump and point the AK-47 at passing traffic. Alarmed, they drove away quickly and
called police. Motorists on Tuscarawas were honking their horns to alert others to
appellant's presence. Three eyewitnesses who later testified at trial stated they feared for
their safety.
{¶ 4} Officer Elliott drove up behind appellant with his cruiser lights activated. He
saw appellant had a long gun in one hand and a pistol in the other and was walking
towards a woman seated on the steps of St. Joseph's Church. Elliott exited his cruiser,
drew his weapon, and ordered appellant to drop the guns and get on the ground.
Stark County, Case No. 2021CA00153 3
Appellant complied. Once appellant was on the ground, and upon closer inspection, Elliott
could see that although they had been modified to look real, the guns were fake. Several
officers including the shift sergeant arrived to assist Elliott. Appellant was taken into
custody without incident. The woman seated on the steps was appellant's girlfriend.
{¶ 5} Appellant was later charged with one count of inducing panic pursuant to
R.C. 2917.31(A)(3), a misdemeanor of the first degree. Appellant pleaded not guilty and
the matter proceeded to a jury trial on November 18, 2021. Before trial the trial court
asked the state what predicate offense it intended to present. The state indicated it would
present evidence of disorderly conduct pursuant to R.C. 2911.11(A). The trial court
granted the state's Motion for Specific Jury Instruction which required the jury to find
appellant caused serious public inconvenience or alarm by committing the offense of
disorderly conduct.
{¶ 6} The state called eight witnesses including two dispatchers who received
911 calls regarding appellant's behavior, three eyewitnesses, and three officers who
managed the incident.
{¶ 7} Appellant testified on his own behalf. He testified he was not pointing the
toy guns at passing traffic, but rather at birds, pretending to shoot them. He also testified
that when his girlfriend went into McDonald's to get them food earlier that day, he stayed
outside because he did not want to scare the employees with the guns. He further
explained that the orange tip on one of the guns had been removed to make it appear
more realistic.
{¶ 8} At the conclusion of state's evidence, counsel for appellant made a Crim.R.
29 motion for acquittal arguing because the state failed to charge appellant with disorderly
Stark County, Case No. 2021CA00153 4
conduct and in any event had failed to prove disorderly conduct. The trial court overruled
the motion. After deliberating, the jury returned a guilty verdict.
{¶ 9} Appellant filed an appeal and the matter is now before this court for
consideration. He raises one assignment of error as follows:
I
{¶ 10} "THE TRIAL COURT COMMITTED REVERSABLE ERROR WHEN IT
FAILED TO GRANT APPELLANT'S RULE 29, MOTION FOR AQUITTAL."
{¶ 11} In his sole assignment of error, appellant argues the trial court erred by
denying his Crim.R. 29 motion for acquittal. We disagree.
{¶ 12} Crim.R. 29 governs motion for acquittal. Subsection (A) states the following:
The court on motion of a defendant or on its own motion, after the
evidence on either side is closed, shall order the entry of a judgment
of acquittal of one or more offenses charged in the indictment,
information, or complaint, if the evidence is insufficient to sustain a
conviction of such offense or offenses. The court may not reserve
ruling on a motion for judgment of acquittal made at the close of the
state's case.
{¶ 13} The standard to be employed by a trial court in determining a Crim.R. 29
motion is set out in State v. Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184 (1978),
syllabus: "Pursuant to Crim.R. 29(A), a court shall not order an entry of judgment of
acquittal if the evidence is such that reasonable minds can reach different conclusions as
Stark County, Case No. 2021CA00153 5
to whether each material element of a crime has been proved beyond a reasonable
doubt."
{¶ 14} Appellant's argument raises a question of sufficiency. On review for
sufficiency, a reviewing court is to examine the evidence at trial to determine whether
such evidence, if believed, would support a conviction. State v. Jenks, 61 Ohio St.3d 259,
574 N.E.2d 492 (1991). "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." Jenks at paragraph
two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d
560 (1979).
{¶ 15} Appellant was convicted of one count of inducing panic in violation of R.C.
2917.31(A)(3) which prohibits causing serious public inconvenience or alarm by
committing an offense with reckless disregard of the likelihood that its commission will
cause serious public inconvenience or alarm. The state alleged appellant committed
disorderly conduct in violation of R.C. 2917.11 with reckless disregard that its commission
would cause public inconvenience or alarm. That section provides in relevant part:
(A) No person shall recklessly cause inconvenience, annoyance, or
alarm to another by doing any of the following:
***
(4) Hindering or preventing the movement of persons on a public
street, road, highway, or right-of-way, or to, from, within, or upon
public or private property, so as to interfere with the rights of others,
Stark County, Case No. 2021CA00153 6
and by any act that serves no lawful and reasonable purpose of the
offender;
(5) Creating a condition that is physically offensive to persons or that
presents a risk of physical harm to persons or property, by any act
that serves no lawful and reasonable purpose of the offender.
{¶ 16} "A person acts recklessly when, with heedless indifference to the
consequences, the person disregards a substantial and unjustifiable risk that the person's
conduct is likely to cause a certain result or is likely to be of a certain nature." R.C.
2901.22(C).
{¶ 17} Appellant argues the trial court erred in denying his Crim.R. 29 motion for
acquittal because the state failed to charge or prove the predicate offense of disorderly
conduct.
{¶ 18} First, appellant points to no authority which would support a conclusion that
the state must charge a predicate offense. Appellant does cite State v. Geary, 2016-Ohio-
7001, 72 N.E.3d 153, (1st Dist.) for its finding that "committing any offense is an essential
element of inducing panic which must be proven beyond a reasonable doubt." Geary at
¶ 5, emphasis added, citing In re P.T., 2013-Ohio-3881, 995 N.E.2d 279, ¶ 26; State v.
Weber, 5th Dist. Stark No. 2007 CA 00334, 2009-Ohio-1344, 2009 WL 765482, ¶ 29. We
agree. Committing a predicate offense is an element of inducing panic. The predicate
offense need not be separately charged.
{¶ 19} Appellant next argues the city failed to prove any element of inducing panic.
Stark County, Case No. 2021CA00153 7
{¶ 20} Testimony presented in the city's case-in-chief established the City of
Canton's 911 dispatch center received numerous calls regarding a man walking up and
down Tuscarawas Street West waving around an assault rifle and a pistol and pointing
the weapons at traffic. One caller believed the guns were fake, but a woman in the
background of the same call believed they were real. Transcript of trial (T.) 131-140. The
911 calls were played for the jury. City's exhibits 1 and 2.
{¶ 21} Officer Kim Elliot, a 32-year veteran of the Canton Police Department,
testified he was driving down Tuscarawas Street when a male pedestrian waived him
down to nervously point out a man walking down the street with an assault rifle. T. 144-
145. Alarmed himself, Elliott went to investigate and saw appellant with a long gun in one
hand, a pistol in the other and walking towards a woman seated on the steps of St.
Joseph's Church. Concerned for the woman, Elliott got out of his cruiser and ordered
appellant to drop the weapons and get on the ground. It was not until appellant dropped
the weapons that Elliott knew they were fake. T 148-149. Before stopping appellant, Elliott
observed appellant pointing the weapons toward the street and demonstrated for the jury.
T. 151-152.
{¶ 22} Joe Hunter was driving home on Tuscarawas Street when he saw appellant
on the sidewalk with an assault rifle. Scared and alarmed for any school children who
may have been present at St. Joseph's, he drove around to the block so he could see
where the man was going. He parked his truck, got out, and hid behind a stairwell wall in
case appellant opened fire. At the same time, he saw Elliott arrive. Hunter stayed until
appellant was secured and gave a statement to responding officers. Hunter testified he
Stark County, Case No. 2021CA00153 8
was offended, alarmed, intimidated, and inconvenienced by the situation which he
believed presented a risk of physical harm. T. 183-188.
{¶ 23} Mikel Willis and Solomon Collins were traveling down Tuscarawas Street
on a shopping trip when they saw appellant walking with an assault rifle. Willis was initially
unconcerned because appellant had the muzzle of the gun pointed upwards. But then
she saw appellant climb onto a tree stump and point the weapon into oncoming traffic.
Both she and Collins feared he would start shooting and "kind of freaked out." Her initial
reaction was to call police but she and Collins wanted to remove themselves from the
situation and get to a place of safety first. Traffic was heavy and other motorists began
honking their horns in warning. The two drove away from the scene quickly and turned
down a side street to get out of the line of fire. From there they called 911. They were
asked to go to the scene and give a statement to officers. They did so and their statements
were captured by one of the responding officer's body camera and played for the jury. T.
192-193, 198-201, city's exhibit 4.
{¶ 24} Responding Canton Police Sergeant Steven Shankle testified the incident
caused public alarm as the department fielded many 911 calls. He further testified that a
passerby would not be able to determine that the weapons appellant was carrying and
pointing at traffic were fake. T. 239-241.
{¶ 25} Appellant testified on his own behalf. He did not deny he pointed the gun
towards traffic, but stated he was pretending to shoot birds and other animals. T. 262-
263. He admitted to getting on the tree stump and pointing the weapons toward traffic,
but again stated he was pretending to shoot birds. T. 281. He later stated he did not point
the guns at any people. T. 169. He then admitted Officer Elliott's description and
Stark County, Case No. 2021CA00153 9
demonstration of how he was holding the weapons while walking down Tuscarawas
Street was accurate. T. 272. Appellant testified that earlier in the day he had not gone
into McDonald's with his girlfriend because he did not want to alarm the people inside with
the guns. T. 273, 284. He also testified the long gun had been modified to look realistic.
T. 277, 283-284.
{¶ 26} We find the forging evidence, when viewed in a light most favorable to the
prosecution, sufficient to prove the charge of inducing panic and disorderly conduct.
Certainly, pointing a realistic looking weapon into oncoming traffic is reckless and caused
panic and public alarm as evidenced by the 911 calls and the testimony of Hunter, Willis
and Collins. Moreover, these witnesses testified they found this threat of force physically
offensive. See State v. Compton, 153 Ohio App.3d 512, 2003-Ohio-4080, 794 N.E.2d
771¶ 14 (threatening another with force, causing a belief of imminent physical harm
constitutes disorderly conduct by recklessly causing alarm to another by creating a
condition that is physically offensive to that person, as provided in the first part of R.C.
2917.11(A)(5)). Each witness presented by the state testified the situation caused
inconvenience, annoyance, or alarm. Accordingly, the trial court did not err in denying
appellant's Crim.R. 29 motion for acquittal.
{¶ 27} The sole assignment of error is overruled.
Stark County, Case No. 2021CA00153 10
{¶ 28} The judgment of conviction and sentence is affirmed.
By Wise, Earle, P.J.
Gwin, J. and
Hoffman, J. concur.
EEW/rw