[Cite as Cleveland v. Ruiz, 2018-Ohio-4604.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 106743
CITY OF CLEVELAND
PLAINTIFF-APPELLEE
vs.
YACHIRA M. RUIZ
DEFENDANT-APPELLANT
JUDGMENT: REVERSED AND REMANDED
Criminal Appeal from the Cleveland Municipal Court Case No. 2017 CRB 017802
BEFORE: Stewart, J., E.A. Gallagher, A.J., and Boyle, J.
RELEASED AND JOURNALIZED: November 15, 2018 ATTORNEYS FOR APPELLANT
Mark A. Stanton Cuyahoga County Public Defender
David Martin King Cullen Sweeney Assistant Public Defenders 310 Lakeside Avenue, Suite 200 Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Barbara A. Langhenry Director of Law City of Cleveland
Karyn J. Lynn Assistant City Prosecutor Justice Center, 8th Floor 1200 Ontario Street Cleveland, OH 44113 MELODY J. STEWART, J.:
{¶1} Defendant-appellant Yachira M. Ruiz appeals after the trial court found her guilty
of assault and aggravated menacing. On appeal, Ruiz raises two assignments of error. In the
first, she argues that her conviction for aggravated menacing is based on insufficient evidence.
In the second, she argues that the court erred by imposing court costs.
{¶2} The city’s sole witness at trial was the victim. She testified about her relationship
with Ruiz and the events that gave rise to Ruiz’s convictions. The victim and Ruiz are related
and have an acrimonious relationship. At one point in time, Ruiz’s mother, who lived with
Ruiz, stopped living with Ruiz and moved in with the victim. The victim testified that this
precipitated “a lot” of “friction” between her and Ruiz, and that she ultimately changed her phone
number as a means of limiting contact with Ruiz.
{¶3} The victim testified that one day while she was driving, a car stopped in front of her.
Four people got out and approached her. She recognized Ruiz and Ruiz’s daughter, but she did
not know the other woman or the man that accompanied them. The victim testified that Ruiz
tried to take a picture or a video of her as she approached the victim in her car. Ruiz opened the
car door and began hitting the victim who was still wearing her seatbelt. The victim was able to
get out of the car and began fighting back in an attempt to defend herself.
{¶4} The struggle continued onto the ground and the victim stated that Ruiz was on top of
her, punching her. The victim indicated that Ruiz’s accomplices also participated in the attack,
but she was unsure about the extent of their involvement. She stated that she and one of the
women “were grabbing each other by the hair.” At one point in her testimony, the victim said it
was Ruiz’s daughter and at another point she said it was Ruiz. She indicated that Ruiz punched
her several times. The skirmish ended when onlookers gathered and Ruiz got back in the vehicle and drove off. On this evidence, in addition to two photographs depicting the victim’s
swollen face and scraped up knee, the trial court found Ruiz guilty of assault and aggravated
menacing.
{¶5} In her first assignment of error, Ruiz argues that the city failed to provide sufficient
evidence to prove that the victim feared Ruiz would cause her serious physical harm. We agree,
and the city more or less conceded the error in oral argument.
{¶6} When considering a challenge to the sufficiency of the evidence, “‘[t]he relevant
inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime proven beyond a
reasonable doubt.’” State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 150,
quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶7} Cleveland Codified Ordinances 621.06 defines the crime of aggravated menacing, a
first-degree misdemeanor, and provides: “[n]o person shall knowingly cause another to believe
that the offender will cause serious physical harm to the person or property of such other person
or member of his or her immediate family.”1 In order to convict Ruiz of aggravated menacing,
the city was required to present evidence of the victim’s subjective belief of her fear of serious
physical harm. See State v. Thomas, 8th Dist. Cuyahoga No. 104174, 2017-Ohio-957, ¶ 22; see
also In re Amos, 3d Dist. Crawford No. 3-04-07, 2004-Ohio-7037, ¶ 21 (“[T]here must be
evidence in the record to support a trial court’s finding that the alleged victim experienced fear of
serious physical harm.”); see also Dayton v. Douglas, 2d Dist. Montgomery No. CA 9841, 1987
1 For purposes of this analysis, we note that conduct punishable under Cleveland Codified Ordinances 621.06 would also be punishable under R.C. 2903.21, which in relevant part provides “[n]o 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.” Ohio App. LEXIS 5618, 3-4 (Jan. 23, 1987) (rejecting objective “reasonable person” test to
prove aggravated menacing).
{¶8} Review of the record reflects that the city presented no evidence to establish that the
victim had a subjective belief Ruiz would harm her, let alone the belief that Ruiz would cause
her serious physical harm. Compare Cleveland v. Reynolds, 8th Dist. Cuyahoga No. 105546,
2018-Ohio-97, ¶ 7 (sufficient evidence to prove aggravated menacing where defendant
threatened to kick victim’s teeth down her throat and victim testified as to her belief of the threat
happening based on their prior history).
{¶9} In its brief, the city makes no argument as to whether it presented sufficient evidence
to prove aggravated menacing. Instead, it relies on the unsupported assertion that Ruiz failed to
challenge the evidence of aggravated menacing before the trial court, concluding that Ruiz,
therefore, waived any challenge to sufficiency on appeal. Our review of the record indicates that
counsel for Ruiz challenged the sufficiency of the evidence as to both counts against her. And
as previously mentioned, the city conceded the error at oral argument. We sustain Ruiz’s first
assignment of error.
{¶10} In her second assignment of error, Ruiz argues that the court erred by imposing the
cost of prosecution. She complains that the court imposed court costs without considering her
ability to pay and did so outside of her presence.
{¶11} R.C. 2947.23 requires a trial court to assess the cost of prosecution against all
criminal defendants, regardless of whether that person is indigent. Dean, 146 Ohio St.3d 106,
2015-Ohio-4347, 54 N.E.3d 80, at ¶ 231. Because court costs are mandatory, a trial court need
not consider a defendant’s ability to pay before imposing them. State v. Miller, 8th Dist.
Cuyahoga No. 106051, 2018-Ohio-2127, ¶ 22. {¶12} Ruiz argues that pursuant to R.C. 2947.14, the trial court should have considered
her ability to pay before it imposed court costs. However, R.C. 2947.14, which relates to
financial sanctions, has no application to the imposition of court costs. See, e.g., State v. Grant,
8th Dist. Cuyahoga No. 104918, 2018-Ohio-1759, ¶ 47.
{¶13} Ruiz also argues that pursuant to State v. Joseph, 125 Ohio St.3d 76,
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[Cite as Cleveland v. Ruiz, 2018-Ohio-4604.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 106743
CITY OF CLEVELAND
PLAINTIFF-APPELLEE
vs.
YACHIRA M. RUIZ
DEFENDANT-APPELLANT
JUDGMENT: REVERSED AND REMANDED
Criminal Appeal from the Cleveland Municipal Court Case No. 2017 CRB 017802
BEFORE: Stewart, J., E.A. Gallagher, A.J., and Boyle, J.
RELEASED AND JOURNALIZED: November 15, 2018 ATTORNEYS FOR APPELLANT
Mark A. Stanton Cuyahoga County Public Defender
David Martin King Cullen Sweeney Assistant Public Defenders 310 Lakeside Avenue, Suite 200 Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Barbara A. Langhenry Director of Law City of Cleveland
Karyn J. Lynn Assistant City Prosecutor Justice Center, 8th Floor 1200 Ontario Street Cleveland, OH 44113 MELODY J. STEWART, J.:
{¶1} Defendant-appellant Yachira M. Ruiz appeals after the trial court found her guilty
of assault and aggravated menacing. On appeal, Ruiz raises two assignments of error. In the
first, she argues that her conviction for aggravated menacing is based on insufficient evidence.
In the second, she argues that the court erred by imposing court costs.
{¶2} The city’s sole witness at trial was the victim. She testified about her relationship
with Ruiz and the events that gave rise to Ruiz’s convictions. The victim and Ruiz are related
and have an acrimonious relationship. At one point in time, Ruiz’s mother, who lived with
Ruiz, stopped living with Ruiz and moved in with the victim. The victim testified that this
precipitated “a lot” of “friction” between her and Ruiz, and that she ultimately changed her phone
number as a means of limiting contact with Ruiz.
{¶3} The victim testified that one day while she was driving, a car stopped in front of her.
Four people got out and approached her. She recognized Ruiz and Ruiz’s daughter, but she did
not know the other woman or the man that accompanied them. The victim testified that Ruiz
tried to take a picture or a video of her as she approached the victim in her car. Ruiz opened the
car door and began hitting the victim who was still wearing her seatbelt. The victim was able to
get out of the car and began fighting back in an attempt to defend herself.
{¶4} The struggle continued onto the ground and the victim stated that Ruiz was on top of
her, punching her. The victim indicated that Ruiz’s accomplices also participated in the attack,
but she was unsure about the extent of their involvement. She stated that she and one of the
women “were grabbing each other by the hair.” At one point in her testimony, the victim said it
was Ruiz’s daughter and at another point she said it was Ruiz. She indicated that Ruiz punched
her several times. The skirmish ended when onlookers gathered and Ruiz got back in the vehicle and drove off. On this evidence, in addition to two photographs depicting the victim’s
swollen face and scraped up knee, the trial court found Ruiz guilty of assault and aggravated
menacing.
{¶5} In her first assignment of error, Ruiz argues that the city failed to provide sufficient
evidence to prove that the victim feared Ruiz would cause her serious physical harm. We agree,
and the city more or less conceded the error in oral argument.
{¶6} When considering a challenge to the sufficiency of the evidence, “‘[t]he relevant
inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime proven beyond a
reasonable doubt.’” State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 150,
quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶7} Cleveland Codified Ordinances 621.06 defines the crime of aggravated menacing, a
first-degree misdemeanor, and provides: “[n]o person shall knowingly cause another to believe
that the offender will cause serious physical harm to the person or property of such other person
or member of his or her immediate family.”1 In order to convict Ruiz of aggravated menacing,
the city was required to present evidence of the victim’s subjective belief of her fear of serious
physical harm. See State v. Thomas, 8th Dist. Cuyahoga No. 104174, 2017-Ohio-957, ¶ 22; see
also In re Amos, 3d Dist. Crawford No. 3-04-07, 2004-Ohio-7037, ¶ 21 (“[T]here must be
evidence in the record to support a trial court’s finding that the alleged victim experienced fear of
serious physical harm.”); see also Dayton v. Douglas, 2d Dist. Montgomery No. CA 9841, 1987
1 For purposes of this analysis, we note that conduct punishable under Cleveland Codified Ordinances 621.06 would also be punishable under R.C. 2903.21, which in relevant part provides “[n]o 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.” Ohio App. LEXIS 5618, 3-4 (Jan. 23, 1987) (rejecting objective “reasonable person” test to
prove aggravated menacing).
{¶8} Review of the record reflects that the city presented no evidence to establish that the
victim had a subjective belief Ruiz would harm her, let alone the belief that Ruiz would cause
her serious physical harm. Compare Cleveland v. Reynolds, 8th Dist. Cuyahoga No. 105546,
2018-Ohio-97, ¶ 7 (sufficient evidence to prove aggravated menacing where defendant
threatened to kick victim’s teeth down her throat and victim testified as to her belief of the threat
happening based on their prior history).
{¶9} In its brief, the city makes no argument as to whether it presented sufficient evidence
to prove aggravated menacing. Instead, it relies on the unsupported assertion that Ruiz failed to
challenge the evidence of aggravated menacing before the trial court, concluding that Ruiz,
therefore, waived any challenge to sufficiency on appeal. Our review of the record indicates that
counsel for Ruiz challenged the sufficiency of the evidence as to both counts against her. And
as previously mentioned, the city conceded the error at oral argument. We sustain Ruiz’s first
assignment of error.
{¶10} In her second assignment of error, Ruiz argues that the court erred by imposing the
cost of prosecution. She complains that the court imposed court costs without considering her
ability to pay and did so outside of her presence.
{¶11} R.C. 2947.23 requires a trial court to assess the cost of prosecution against all
criminal defendants, regardless of whether that person is indigent. Dean, 146 Ohio St.3d 106,
2015-Ohio-4347, 54 N.E.3d 80, at ¶ 231. Because court costs are mandatory, a trial court need
not consider a defendant’s ability to pay before imposing them. State v. Miller, 8th Dist.
Cuyahoga No. 106051, 2018-Ohio-2127, ¶ 22. {¶12} Ruiz argues that pursuant to R.C. 2947.14, the trial court should have considered
her ability to pay before it imposed court costs. However, R.C. 2947.14, which relates to
financial sanctions, has no application to the imposition of court costs. See, e.g., State v. Grant,
8th Dist. Cuyahoga No. 104918, 2018-Ohio-1759, ¶ 47.
{¶13} Ruiz also argues that pursuant to State v. Joseph, 125 Ohio St.3d 76,
2010-Ohio-954, 926 N.E.2d 278, it was error for the court to order her to pay costs when it did
not do so at the sentencing hearing. “Joseph is no longer good law.” State v. Beasley, 153
Ohio St.3d 497, 2018-Ohio-493, ¶ 263. The trial court “retains jurisdiction to waive, suspend,
or modify the payment of the costs of prosecution * * * at the time of sentencing or at any time
thereafter.” (Emphasis deleted.) Id. at ¶ 265, citing R.C. 2947.23(C). As such, Ruiz can move
the court at any time to waive the payment of costs. A remand is not required. See Beasley at ¶
265. We overrule this assignment of error.
{¶14} Judgment reversed and remanded to the trial court to vacate the conviction for
aggravated menacing.
It is ordered that appellant recover of appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cleveland
Municipal Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
______________________________________________ MELODY J. STEWART, JUDGE
EILEEN A. GALLAGHER, A.J., and MARY J. BOYLE, J., CONCUR