State v. Ward

[Cite as State v. Ward, 2016-Ohio-7627.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 26916
:
v. : T.C. NO. 15CR56
:
JAMES A. WARD : (Criminal appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the __4th__ day of _____November_____, 2016.
...........
ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
SEAN BRINKMAN, Atty. Reg. No. 0088253, 10 W. Monument Avenue, Dayton, Ohio
45402
Attorney for Defendant-Appellant
.............
DONOVAN, P.J.
{¶ 1} This matter is before the Court on the Notice of Appeal of James A. Ward,
filed November 18, 2015. Ward was convicted, following a jury trial, on one count of
retaliation (public servant/attorney), in violation of R.C. 2921.05(A), and intimidation of a
victim/attorney (by threat), in violation of R.C. 2921.04(B), both felonies of the third
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degree. At disposition the court merged the offenses and the State elected to proceed to
sentencing on the retaliation conviction. The court imposed a sentence of 36 months, to
be served consecutively to the sentences previously imposed in Montgomery County
Case Nos. 2005-CR-5065 and 2006-CR-3392. We hereby affirm the judgment of the
trial court.
{¶ 2} Ward was indicted on January 13, 2015, and he pled not guilty on January
28, 2015. On October 26, 2015, the State filed a “Motion of Prosecuting Attorney to
Depose a Material Witness,” seeking permission to depose Trooper Keith Fellure of the
Ohio State Patrol, who would be unavailable at the time of trial.
{¶ 3} Trial commenced on November 2, 2015. At the start thereof defense counsel
noted that the complaining witness herein is a prosecuting attorney in the Montgomery
County Prosecutor’s Office, and he requested that independent counsel be appointed to
represent the State. He further objected to the use of Trooper Fellure’s deposition, since
“[i]t deprives my client of the ability to cross-examine or confront the witness in open court
before the jury.” The court overruled the request for the appointment of independent
counsel, and it noted that the use of Fellure’s deposition was allowed since Fellure was
unavailable for trial.
{¶ 4} Julie Bruns testified that she is an Assistant Prosecuting Attorney for the
Montgomery County Prosecutor’s Office, having been so employed for approximately 20
years. She stated that she is currently the chief of the juvenile division, having held that
position for 10 years, prosecuting juvenile delinquency cases. Bruns stated that she
prosecuted James Ward eight or nine years ago, and that he was tried as an adult. She
stated that the “particular cases for which I prosecuted him were what we call
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discretionary transfers. So those require two different hearings.” Bruns stated that at
the initial hearing, probable cause that a crime was committed by Ward was established,
and the second hearing was held after a probation report was completed as well as a
psychological examination of Ward. She testified that there were two cases involving
Ward, and “the one case came over first and we prosecuted it, and then after he actually
entered his plea and was sentenced, the second case actually came through and we tried
that one as well.” After refreshing her recollection regarding Ward’s offenses by means
of his judgment entries of conviction, Bruns testified that in Case No. 2005-CR-5065,
Ward was “convicted of two counts of rape, one count of attempted rape, one count of
aggravated burglary, two counts of burglary and one count of kidnapping.” Bruns stated
that he was sentenced to a prison term of 20 years in that case. Bruns further testified
that in Case No. 2006-CR-3392, Ward “was convicted of attempted rape with a one-year
firearm specification, felonious assault with a one-year firearm specification, gross sexual
imposition with a one-year firearm specification, and gross sexual imposition with a one-
year firearm specification, and abduction with a one-year firearm specification.” Bruns
stated that in that case Ward “received an 11-year sentence to run consecutive to the
prior case.”
{¶ 5} Bruns stated that she received correspondence from Ward at the
Montgomery County Prosecutor’s Office “within the last year,” and that “in the return
address label it had James Ward’s name and the address of the penitentiary where he
was.” She stated that Ward, in the letter, “made reference to the * * * cases I prosecuted
him in. So that’s how I was able to identify that it had come from him, and then he signed
his name at the end as well.” Bruns stated she became alarmed by the contents of the
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letter, and she put it and the envelope into a plastic baggie from her desk drawer and
zipped the baggie shut. Bruns stated that she advised her boss about her receipt of the
letter, and then she gave the letter to “Gary Ware, our investigator at the time.” Bruns
identified, as State’s Exhibit 1, the baggie, the envelope and the letter from Ward. She
stated that the letter is “two pages, but really three, because front and back and then
front.” Bruns read the letter to the jury as follows:
“Ms. Bruns, you may not remember who I am after all these years,
knowing you’ve helped convict many people even at a young age.”
***
“And given so much time that it destroys their family relationships
and so much more. Young juveniles that could have just been put through
treatment, but you ain’t the type that cares. You care nothing about the
young or old; just lock up all the people you feel needs to be off the streets.
“Well, Julie, this is James Ward. I was one of them juveniles you
helped convict of a rape case in 2005 and 2006. You got me mandatory
years on my first case, 11 on my second, and ever since then, my family
relationships have been destroyed due to lack of contact in here, and all I
really think about is when am I ever going to see my family again.
“What, when I’m 36 to 48 years old? My father is getting old and my
grandmother is dying, neither I get to see. I’ve developed so much hurt
and pain over the years, Julie, that turn to so much anger and rage. Why?
Because I’ve realized many years ago that what I did was wrong and have
actually made changes in my life, but does the courts or you really give a -
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- give a damn to let me go home? No. All you care about is locking people
up, so-called criminals, when we’re nothing but human beings that just need
help.
“It’s this type of treatment we get that really makes us into the
monsters you all first indicate that we are, so look and listen closely, Julie.
I’ma (sic) to show you the monster you helped turn me into by sending me
to prison for all this time. They say the worst you can do is lock someone
up to where he has so much time to develop plans on how to get away with
doing things.
“The worst mistake the government ever does it puts all of us so-
called criminals together; murderers, hit men, drug dealers and so much
more. Basically, y’all putting a label on us that we really ain’t. So this is
what it is, Julie, either you overturn both my cases or get my time took down
to just 14, which will leave me with six more years, or I’m [sic] send death
your way through people, I’ve come to - -through people I’ve come to meet
while in here, and if you think it’s a game, just try me, because as far as I
know, it ain’t s*** you can do to stop me.
“You’re there and I’m here, right where I need to be to send the word
and get your life took along with everybody else. Yeah, that’s right, you
along with all the detectives that was working my case. They don’t believe
I sent that letter but only time will tell, and right now, time is getting short.
Julie, it’s your call, live or die, but time is on my side, not yours nor theirs,
take care.
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“Plus, you got me paying all this darn court costs that I can’t even
f***ing pay. For years, I’ve been struggling to get the things I need, but you
don’t” - - sorry - -“you don’t give a f*** about that. So what do you think I
give a f*** about; definitely not you. Just be ready when that time comes.”
{¶ 6} Bruns testified that when she initially read the letter she did not “know what
he’s exactly capable of or where he’s being housed or who he may have met. So I
thought it was important to pass along and have somebody take a look into it and just see
if there was anything really to it.”
{¶ 7} Gary Ware testified that he is retired after 42 years of employment as an
investigator in the Montgomery County Prosecutor’s Office. He stated that on November
12, 2014 he was asked by Mat Heck to investigate the letter received by Bruns. Ware
stated that he contacted Bruns, advised her not to touch the letter, and then retrieved it
from her and placed in “our property room.” He stated that when he obtained the letter,
it was in “like a Ziploc bag-type of an envelope.” Ware identified the baggie, the envelope
and the letter. Ware stated that he removed the letter from the property room and
transferred it to the Bureau of Criminal Investigation (“BCI”) in early December of 2014.
Ware testified that he “requested that it be checked for fingerprints and I also requested
it be checked for DNA of Mr. Ward. And I also compared with fingerprints and DNA of
Mr. Ward. And also I had obtained a known handwriting exemplars [sic] from Mr. Ward
and had submitted those with the letter asking that a handwriting analysis be done to see
if he was the author of the letter.” According to Ware, he “called a state trooper down *
* * in Lucasville where Mr. Ward was incarcerated and asked him to obtain a voluntary
DNA sample. Apparently he could not do that so he went and got a search warrant from
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a local judge down there and obtained the DNA sample from Mr. Ward with that search
warrant.” Ware identified as State’s Exhibit 4 the envelope he received from the state
trooper containing Ward’s DNA sample. Ware stated that he contacted John Skidmore,
an investigator at Lucasville prison, who mailed Ward’s handwriting exemplars to him,
and Ware identified copies of the samples he received. Ware testified that after the BCI
analysis was completed, he retrieved the evidence and put it in the evidence room.
{¶ 8} Linnea Mahlman testified that she is the institutional inspector at Southern
Ohio Correctional Facility, having been so employed for nine years, with a total of 20
years of employment at the facility. Mahlman testified that she addresses inmate
complaints that she receives in writing. She stated that once an inmate files “his informal
complaint, he has to kite me for a grievance form.” She stated that she then investigates
the allegations. Mahlman testified that John Skidmore obtained two informal complaints
and a kite written by Ward from her, and she identified them as State’s Exhibit 8.
{¶ 9} Jessica Toms testified that she is a quality assurance supervisor at BCI, in
London, Ohio, where she has been employed for nine years. She stated that the “main
area of expertise that I was trained in was question document examination.” Toms
stated that she has previously provided expert testimony in forensic document
examination 11 times in Ohio, and the trial court declared her an expert in the field. Toms
identified State’s Exhibit 1A and testified that the “item is labeled with a BCI laboratory
label, for BCI Case Number 14-110098, Item Number 1.2. And then also, it has my
initials, and the date that I sealed the item, as well as the case numbers, and the initials
on the back.” Toms opened the exhibit and identified “images that remained of the
envelope and letter that were submitted in BCI Case Number 14-110098, Item Number 1
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prior to processing for latent prints.” Toms stated, “[t]his, along with the original letter
was used, and they have my initials in ink here.” Toms stated that “in this case I had
both the original and the images that we had made, for comparison, if the ink had been
destroyed in the original, during latent print processing.” Toms also identified State’s
Exhibit 8, and she testified that it “is Item Number 2, for BCI Case Number 14-110098.
Again, the label’s on it. My initials are on this seal, here, as well as the case number.
And my initials and the case number are also on the items. And these were copies of
writing that was submitted to us for comparison to the known writing.” Regarding the
analysis of Ward’s writing, Toms stated that the “conclusion was that the writer of the
known James Ward samples that were submitted was the same writer that wrote the
question letter and envelope.” Toms stated she concluded that “the writer of the known
writing wrote the question writing” to a reasonable degree of scientific certainty.
{¶ 10} Andrea Weisenburger testified that she is employed at BCI as a forensic
scientist in the DNA section, having been so employed since February of 2012. She
stated that she has performed DNA analyses “[t]housands of times,” and that she has
provided expert testimony in DNA testing ten times. Weisenburger testified, “when we’re
looking at DNA, we’re looking at 16 different locations. So when you’re looking at the
pictures next to each other, you’re going to compare each location and see if they are the
same or if they are different.” She stated, if “they are the same at every one of those
locations, then we call that included and we do do a statistic. If they are different at any
locations, then they are excluded and no statistic will be performed.” Weisenburger stated
she followed the appropriate procedures herein, which she described. She testified that
“[i]tem one was an envelope with a letter. And then item three was oral swabs from
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James Ward.” She stated that she obtained a single source DNA profile from the
envelope seal and one from the swabs, and she compared them. Weisenburger testified
that “James Ward’s DNA profile, he was included in the evidence profile from the sample
from the envelope.” She concluded to a reasonable degree of scientific certainty that the
DNA profile from the envelope matched the DNA profile from James Ward.
{¶ 11} The deposition of Keith Fellure was played for the jury. He testified that he
is “employed as a trooper in the Investigative Services section out of our Jackson District
Headquarters” in Jackson, Ohio, having been so employed for 24 years. Fellure stated
that he was contacted by Ware via phone and email, and that he obtained a search
warrant to collect a sample of Ward’s DNA. Fellure stated that he executed the warrant
at the Southern Ohio Correctional Facility in November of 2014. Fellure stated that he
sent the DNA sample he obtained from Ward to Ware at the Montgomery County
Prosecutor’s Office, and he identified the envelope containing the samples.
{¶ 12} Carl Steele testified that he is employed at the Montgomery County Sheriff’s
Office in the Fingerprints Department. He stated that he received training in obtaining
fingerprints at the Miami Valley Regional Crime Lab, BCI and the FBI. Defense counsel
stipulated to Steele’s expertise in fingerprinting. Steele testified that he obtained Ward’s
fingerprints on January 26, 2015, and he identified “the journal that is kept in our office of
everybody that’s fingerprinted, and who did it.” Steele testified that Ward’s fingerprints
were “electronically transmitted to the Miami Valley Regional Crime lab, BCI&I, and the
FBI in West Virginia.”
{¶ 13} Daniel Steiner testified that he is a forensic scientist at BCI. After he
described his background and experience, the court declared Steiner an expert in the
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field of fingerprint examinations. Steiner stated that he retrieved a latent print from the
letter Ward sent to Bruns, and that he compared it to Ward’s inked print. According to
Steiner, he “was able to identify the right little finger of the fingerprint card bearing the
name of James Ward to the latent print that was recovered from the letter” that he
received in the course of his employment at BCI. In comparing prints, Steiner stated that
the prints matched to a reasonable degree of scientific certainty.
{¶ 14} At the conclusion of the State’s case, defense counsel moved for an
acquittal as follows:
* * * Basically, I am arguing * * * that the second count in this
particular case, the intimidation of an attorney in a case, is inapplicable.
The basic idea of this, is that the case has not been pending for eight or
nine years, as a result. The attorney in the case has already discharged
the duties to the extent that were necessary, and that there would be no
reason to see this applied to an old case.
* * * If that were not the case, then anybody who is a witness or a
victim or an attorney in a case, would be forever then protected by this
higher level of offense, even though there would be nothing for that witness,
victim, or attorney to do in the discharge of their duties.
And, so I strongly suggest that when it comes to the intimidation of
an attorney * * * It has to be during a current, pending case that that cannot
survive the Rule 29. Because there is nothing that anyone could do, this
Defendant included, that would have * * * influenced or change[d] the
manner in which an attorney discharged her duties over a case that is long
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since over.
With respect to the first charge, I am going to similarly make a motion
for a Rule 29 acquittal. My suggestion to the Court, in regards to that, is that
this was not a retaliation. A retaliation classically is one where an individual
says, because you did this to me, I in turn now will do X, Y, or Z to you.
That’s not the case. The tone of the letter, which is purportedly written by
the Defendant, indicates that he wants essentially Ms. Bruns[’] assistance
in a matter where she could not possibly, and it’s a legal impossibility for
her to even do this. But, he wants her assistance in reducing the number
of years that he is to serve, and should she not do that, then he is going to
take certain actions to see that she is seriously harmed or killed.
That is extortion or coercion or any number of things, but it is not
retaliation, because you did this to me, I am now - - am going to, in turn, do
this to you. And, the third point that I make in the motion for the Rule 29
Motion, is that proper venue lies not in Montgomery County, but in Scioto
County. * * *
Defense counsel also filed a written “Motion for Acquittal,” relying in part on State v. Birt,
2013-Ohio-1379, 5 N.E.3d 1000 (12th Dist.) Ward asserted that the intimidation statute
did not apply to him because “there must be a case pending.”
{¶ 15} The trial court overruled the motion for acquittal as follows:
* * * The Court finds the venue is proper in Montgomery County,
because the letter was delivered to Montgomery County, * * * it was sent in
an envelope addressed to Dayton, Ohio where * * * Ms. Bruns is the
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assistant prosecuting attorney. She received the letter here, this is her
place of work, so Montgomery County is proper venue. Scioto County may
be proper too, but the Court doesn’t need to decide that. With regard to
the two counts with which it is charged, the Court construes the evidence
most strongly in the State’s favor.
The letter indicates, and we know that Ms. Bruns prosecuted
Defendant on two cases, 2005, 2006. She was - - he was convicted of two
counts of rape on the first case, in 2005, sentence of 20 years, that’s two
ten year sentences consecutively. And, then on 2006, he was * *
*convicted of attempted rape, a gun spec, an abduction, consecutively
sentenced for 11 years, * * *. * * * It’s evident from the letter that he sent
this letter to her, threatening her because she was the prosecuting attorney
in that particular case. Assistant prosecuting attorney in that particular
case.
And, * * * he also indicated in there, that he - - that either she overturn
his case, or get his time taken down to just 14 years, that’ll - - leave him six
more years to do, or I’m going to send death your way for [sic] people I’ve
come to meet while in prison. So, the court agrees that this letter goes to
past acts of Ms. Bruns in prosecuting Defendant, as well as on future acts
that he wants her to take, as the assistant prosecutor who prosecuted him.
So, the Court finds that there is sufficient grounds to take the - - send
this case to the jury, and will overrule the Rule 29 Motion.
{¶ 16} Ward asserts two assignments of error herein which we will consider
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together. They are as follows:
THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION
FOR ACQUITTAL PURSUANT TO OHIO RULE OF CRIMINAL
PROCEDURE 29.
a. Was the evidence presented, viewed in the light most favorable to
the State, sufficient to satisfy all elements of Intimidation of an attorney?
b. Was the evidence presented, viewed in the light most favorable to
the State, sufficient to satisfy all elements of Retaliation?
And,
THE TRIAL COURT ERRED BECAUSE APPELANT’S
CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
a. Was sufficient evidence presented to satisfy all elements of
Intimidation of an attorney?
b. Was sufficient evidence presented to satisfy all elements of
Retaliation?
{¶ 17} As this Court has previously noted:
Crim.R. 29 provides that a trial court must enter a judgment of
acquittal “if the evidence is insufficient to sustain a conviction of such
offense or offenses.” Crim.R. 29(A). “When reviewing the sufficiency of
evidence, the relevant inquiry is whether any rational finder of fact, viewing
the evidence in a light most favorable to the state, could have found the
essential elements of the crime proven beyond a reasonable doubt. A guilty
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verdict will not be disturbed on appeal unless ‘reasonable minds could not
reach the conclusion reached by the trier-of-fact.’ (Citation omitted.) State
v. Knight, 2d Dist. Greene No. 2003CA14, 2004–Ohio–1941, ¶ 15, quoting
State v. Dennis, 79 Ohio St. 3d 421, 430, 683 N.E.2d 1096 (1997).
State v. Welch, 2d Dist. Montgomery No. 25921, 2014-Ohio-3349, ¶ 8.
{¶ 18} As this Court further noted in Welch regarding a manifest weight challenge:
* * * In that regard, we review the entire record, weigh the evidence
and all reasonable inferences, consider witness credibility, 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. Thompkins,
78 Ohio St. 3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin, 20
Ohio App. 3d 172, 175, 485 N.E.2d 717 (1983). “Because the trier of fact
sees and hears the witnesses and is particularly competent to decide
‘whether, and to what extent, to credit the testimony of particular witnesses,’
we must afford substantial deference to its determinations of credibility.”
State v. Gabriel, 170 Ohio App. 3d 393, 2007–Ohio–794, 867 N.E.2d 474, ¶
78 (2d Dist.), rev'd on other grounds sub nom, In re Ohio Criminal
Sentencing Cases, 116 Ohio St. 3d 31, 2007–Ohio–5551, 876 N.E.2d 528,
quoting State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684
(Aug. 22, 1997). A judgment should be reversed as being against the
manifest weight of the evidence “only in the exceptional case in which the
evidence weighs heavily against the conviction.” Martin at 175.
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Welch, ¶ 10.
{¶ 19} Regarding intimidation, Ward asserts that the “existence of a criminal
action or proceeding is an essential element of the offense.” He asserts that a “person’s
potential involvement is not sufficient to satisfy the element of a criminal action or
proceeding.” According to Ward, R.C. 2921.04(B) does not apply in the absence of a
criminal action or proceeding at the time of the threat. He asserts that the “Intimidation
statute, and the Retaliation statute should be construed in pari materia as they relate to
the same general subject matter,” and that “Intimidation differs from Retaliation because
Intimidation occurs prior to a judicial decision, while Retaliation occurs after a judicial
decision,” citing State v. Lambert, 2d Dist. Montgomery No. 16667, 1998 WL 288957
(June 5, 1998). Ward argues that the “State failed to present evidence that the attorney
in the present case was involved in a criminal action or proceeding,” since Bruns testified
that she prosecuted Ward eight or nine years prior to trial. In other words, Ward asserts
that Bruns’ involvement in Ward’s court proceedings was “completed” prior to the letter
being mailed to her, and “based on the lack of evidence of a criminal action or proceeding,
the trial court erred in denying Appellant’s motion for acquittal.”
{¶ 20} Regarding retaliation, Ward asserts that retaliation “requires an action
taken in return for a past occurrence, as opposed to intimidation which requires a threat
intended to inhibit future activity.” Ward argues that the “retaliation statute applies to
actions that are made in response to an individual already discharging some or all of her
duties.” Ward asserts that the State “failed to present sufficient evidence of retaliation.
The letter threatens to ‘send death your way’ if Ms. Bruns did not overturn both of
Appellant’s convictions or reduce his prison sentence to 14 years.” According to Ward,
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“the letter seeks Ms. Bruns to perform a future act or face the threatened response. * * *
The letter does not threaten harm to Ms. Bruns for the prosecution of Appellant in his
earlier case.” Ward asserts that he “does not make any threats based upon the past
prosecution. * * * The evidence presented was insufficient to satisfy the element that the
person ‘retaliate’ against an attorney of public official.”
{¶ 21} In his second assignment of error, Ward asserts that there “was no evidence
that there were any court proceedings occurring at the time Ms. Bruns received the letter.
Therefore, the conviction for Intimidation was against the manifest weight of the
evidence.” Finally, Ward asserts that although “the letter indicates displeasure with the
sentence and lack of treatment Appellant received, the threat was not directed at any past
conduct by Ms. Bruns. * * * The verdict was against the manifest weight of the evidence
because the State failed to establish that Appellant retaliated against Ms. Bruns.”
{¶ 22} R.C. 2921.04(B) proscribes intimidation and provides:
(B) No person, knowingly and by force or by unlawful threat of harm
to any person or property or by unlawful threat to commit any offense or
calumny against any person, shall attempt to influence, intimidate, or hinder
any of the following persons:
(1) The victim of a crime or delinquent act in the filing or prosecution
of criminal charges or a delinquent child action or proceeding;
(2) A witness to a criminal or delinquent act by reason of the person
being a witness to that act;
(3) An attorney by reason of the attorney's involvement in any
criminal or delinquent child action or proceeding. (Emphasis added).
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{¶ 23} R.C. 2921.05(A) proscribes retaliation and provides:
(A) No person, purposely and by force or by unlawful threat of harm
to any person or property, shall retaliate against a public servant, a party
official, or an attorney or witness who was involved in a civil or criminal
action or proceeding because the public servant, party official, attorney, or
witness discharged the duties of the public servant, party official, attorney,
or witness.
{¶ 24} Regarding intimidation, Ward’s arguments fail for multiple reasons. We
initially note that Ward’s reliance upon Birt was misplaced; Birt was charged with
intimidating a witness in violation of R.C. 2921.04(B), and the version thereof in effect at
the time proscribed in part intimidation of a witness “ ‘involved in a criminal action or
proceeding.’ ” Birt, 2013-Ohio-1379, at ¶ 18. Since Birt’s “threats occurred prior to any
proceeding in a court of justice,” the Twelfth District determined that “there simply was no
pending criminal proceeding at the time the threats were made. Accordingly, no rational
trier of fact could have found the essential elements of R.C. 2921.04(B) were proven
beyond a reasonable doubt.” Id., ¶ 21. The Twelfth District noted that “effective June 4,
2012, the General Assembly amended R.C. 2921.04 such that the offense now also
includes attempts to intimidate a witness regardless of whether an action or proceeding
is pending. However, this amendment is not applicable to Birt and our discussion is
limited to the prior version of R.C. 2921.04.” Id., ¶ 18, fn. 2.
{¶ 25} Similarly, we note that the defendant in Lambert appealed his conviction
for retaliation in violation of R.C. 2921.05(B), which provided “ ‘No person, purposely and
by force or by unlawful threat of harm to any person or property, shall retaliate against the
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victim of a crime because the victim filed or prosecuted criminal charges.’ ” Lambert,
1998 WL 288957, at *4. This Court concluded that the statute was “not clear whether or
not the threat must be uttered directly to the person against whom the retaliation is sought.
Because the statute is ambiguous on this point, we avail ourselves of other sources from
which to discern the intent of the legislature and resolve the ambiguity.” Id. This Court
concluded as follows:
The statute at issue, which was introduced as H.B. 88 on February
1, 1995, was described as expanding current law concerning intimidation to
include retaliation. Ohio Legislative Service Commission, Summary of
Discussion on H.B. 88, House Judiciary and Criminal Justice Committee,
October 4, 1995. In addition, the distinguishing characteristic between
intimidation and retaliation was said to be that intimidation occurs before a
judicial decision, whereas retaliation occurs after a judicial decision has
been rendered. Id. The retaliation statute, therefore was intended to
correspond to the intimidation statute in its effect, save that it is applicable
only after judgment has been rendered on the underlying offense. * * *
Further indication of the legislature’s intent is evident in the similarity
of language in the two statutes.
Id.
{¶ 26} This Court then considered the text of R.C. 2921.03(A), (not R.C. 2921.04),
which it quoted as follows: “ ‘(A) No person, knowingly and by force, by unlawful threat
of harm to any person or property, * * * shall attempt to influence, intimidate, or hinder a
* * * witness involved in a civil action or proceeding in the discharge of the person’s duties
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of * * * witness.’ ” Like Birt, Lambert does not support Ward’s assertion that a pending
case is required for R.C. 2921.04(B) to apply. By its plain language, R.C. 2921.04(B)
prohibits the intimidation of an “attorney by reason of the attorney’s involvement in any
criminal * * * proceeding.”
{¶ 27} Further, weighing all the evidence in a light most favorable to the State,
and having thoroughly reviewed the entire record, there is no basis to conclude that the
trial court erred in overruling Ward’s motion for acquittal, or that his conviction is against
the manifest weight of the evidence. Bruns testified that she is an attorney who previously
prosecuted Ward in two criminal proceedings, and that she received the above letter from
Ward at her workplace. The testimonies of Ware, Mahlman, Toms, Weisenburger,
Fellure, Steele, and Steiner establish that Ward authored the letter. The letter contains
multiple unlawful threats of harm to intimidate Bruns into overturning Ward’s convictions
or reducing his sentences. Ward wrote, “either you overturn both my cases or get my
time took down to just 14 * * * or I’m [sic] send death your way * * * through people I’ve
come to meet while in here, and if you think it’s a game, just try me, because as far as I
know, it ain’t s*** you can do to stop me.” Ward further wrote that he is “right where I
need to be to send the word and get your life took,” and “time is getting short. Julie, it’s
your call, live or die, but time is on my side * * *.” As the State asserts, and for the
foregoing reasons, Ward’s arguments fail.
{¶ 28} Regarding retaliation, weighing all of the evidence in a light most favorable
to the State, and having thoroughly reviewed the entire record, we conclude that the trial
court did not err in overruling Ward’s motion for acquittal, and that Ward’s retaliation
conviction is not against the manifest weight of the evidence. In his letter, Ward wrote,
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“I was one of them juveniles you helped convict of a rape case in 2005 and 2006. You
got me 20 mandatory years on my first case, 11 on my second, and ever since then my
family relationships have been destroyed due to lack of contact in here * * *.” He further
wrote, “* * * look and listen closely, Julie. I’ma (sic) to show you the monster you helped
turn me into by sending me to prison for all this time,” and he threatened to “send death”
her way. We conclude that the State established that Ward, by means of the letter,
retaliated against Bruns with unlawful threats for discharging her duties in obtaining his
convictions.
{¶ 29} Since Ward’s assigned errors lack merit, they are overruled, and the
judgment of the trial court is affirmed.
..........
FAIN, J. and HALL, J., concur.
Copies mailed to:
Andrew T. French
Sean Brinkman
Hon. Michael Ward,
Visiting Judge