[Cite as Fairview Park v. Werling, 2024-Ohio-5323.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
CITY OF FAIRVIEW PARK, :
Plaintiff-Appellee, : Nos. 113684, 113686, and 113687 v. :
AMBER L. WERLING, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: November 7, 2024
Criminal Appeal from the Rocky River Municipal Court Case Nos. 23 CRB 0339, 23 CRB 0937, and 23 CRB 0938
Appearances:
John T. Castele, City of Fairview Park Assistant Law Director/Prosecutor, for appellee.
Susan J. Moran, for appellant.
SEAN C. GALLAGHER, J.:
In this consolidated appeal, appellant Amber L. Werling appeals her
convictions in three underlying cases. Upon review, we affirm both of her
convictions for menacing and her conviction for ethnic intimidation. Werling was charged in three separate cases for offenses arising from
her conduct toward employees of a Famous Footwear store. Werling was charged
with menacing, against victim L.M., in Rocky River M.C. No. 23 CRB 0339 and with
ethnic intimidation, also against victim L.M., in Rocky River M.C. No. 23 CRB 0938
for an incident that occurred on February 19, 2023. Werling was charged with
menacing, against separate victim A.S., in Rocky River M.C. No. 23 CRB 0937 for an
incident that occurred on April 2, 2023. Following a bench trial, Werling was found
guilty of all three offenses. In each case, Werling was sentenced to a suspended jail
term, placed on three years of probation, and ordered to pay a $100 fine. Werling
timely filed this appeal.
The transcript reflects that on December 22, 2020, Werling went to
the Famous Footwear store at Westgate Mall in Fairview Park, Ohio, to return a pair
of shoes. L.M., D.C., and another employee were working at the time. A dispute
arose regarding the return, and Werling began to record the encounter on her cell
phone. The incident ended with Werling being told that she had to leave the store
and that she was not allowed to come back into the store. After leaving, Werling,
who is a white woman, called the store several times and reportedly used derogatory
language and used the “N” word directed at L.M., who is an African-American
woman. Werling was told to stop calling or the police would be called.
On February 19, 2023, L.M. and A.S. were working at the same
Famous Footwear store in Fairview Park when Werling came into the store with her
daughter to shop for shoes. When Werling and her daughter approached the register, L.M. recognized Werling and told her that she was not allowed to be in the
store. L.M. testified that Werling then started yelling at L.M., slammed the door,
yelled, “Dave, [t]his n***** b**** is trying to beat my a**”, and repeatedly called
L.M. a “n***** b****.” L.M.’s son and her son’s father (“Dave”) were outside in the
car. A.S., who was aware of the 2020 incident, testified that Werling was shopping
in the store and after she was told by L.M. that she was not allowed in the store,
Werling started “screaming and yelling” and kept calling L.M. a “fat n***** b****.”
According to Werling and her daughter, after they entered the store, L.M. was in
Werling’s face and threatening to beat her up and spit in her face and, at that point,
Werling yelled out the door to Dave, got in the car, and the police were called.
Werling provided testimony to explain her use of the “N” word and asserted it was
in response to L.M.’s accusations and was not intended as a racial slur but as a
derogatory comment to describe her as ignorant for what L.M. did to Werling in
front of her daughter. Dave also testified.
A.S. recorded a portion of the incident on her phone, which was
played during trial. A.S. testified that Werling was “screaming the N word over and
over” and was calling L.M. a “n***** b****” for at least 30 seconds before A.S. began
recording the incident. The video showed that as Werling was leaving the store, she
yelled out the statement testified to by L.M. and told Dave to “call the police.” L.M.
responded to go ahead and call the police because Werling was “trespassing.” After
slamming the door, Werling walked off screen as she continued to yell the racial slur.
The police were then called by both sides to the incident. A responding officer testified that two calls came in to the police. The
officer described Werling’s demeanor at the scene as “aggressive, argumentative, not
calm,” and “very animated.” No arrests were made at the time. Another officer, who
prepared a report, indicated that Werling stated she called L.M. the “N” word
because of how she was acting and not because Werling is racist. L.M. did not report
her feelings in her initial statement. An officer returned to the store a few days later
and spoke with L.M., who told the officer she was fearful. L.M. testified that she was
fearful the day of the incident and stated, “[T]he fact that she went to her car to call
her boyfriend to tell him I’m trying to do something to her, of course I’m fearful. I
don’t know what she’s capable of.”
On April 2, 2023, Werling messaged A.S. on Facebook. A.S. testified
that Werling had to have searched for her name in order to send the message and
that when she read the message, she felt threatened. A.S. indicated that Werling was
clearly still mad about what happened at the store. In the message, Werling referred
to the incident at the store, repeatedly referred to L.M. as an “orca b****” and
emphasized “ORCA,” used profanity, and proceeded to state the following:
Since that orca knows I have black family! She also knows what we are about lol!
Y’all don’t want smoke I promise you that!!!! For your sakes, I hope I never see y’all out, in Lorain, in [Fairview Park], anywhere! Y’all lucky there was a door to my left because that whole situation could have turned out differently if there wasn’t!!”
Y’all lucky to still have jobs! A.S. testified that the message made her feel unsafe, that she took it
as a threat, that it included the city where A.S. lives, that she did not know what
Werling or her family were capable of doing, and that her first instinct was to call
the police. A.S. told L.M. and her work team through a group chat about the
Facebook messages.
Other testimony and evidence were presented that this court has
thoroughly reviewed. On appeal, Werling raises three assignments of error for
review.
Under her first assignment of error, Werling claims the trial court
erred by denying her Crim.R. 29 motion for acquittal on all charges. “‘A motion for
acquittal under Crim.R. 29(A) is governed by the same standard as the one for
determining whether a verdict is supported by sufficient evidence.’” State v.
Spaulding, 2016-Ohio-8126, ¶ 164, quoting State v. Tenace, 2006-Ohio-2417, ¶ 37.
“‘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.’” Id., quoting State v. Jenks, 61
Ohio St.3d 259 (1991), paragraph two of the syllabus. When evaluating the
sufficiency of the evidence, a reviewing court considers “whether the evidence, ‘if
believed, would convince the average mind of the defendant’s guilt beyond a
reasonable doubt.’” State v. Pountney, 2018-Ohio-22, ¶ 19, quoting Jenks at
paragraph two of the syllabus. In this matter, Werling was found guilty of menacing, a misdemeanor
of the fourth degree in violation of R.C. 2903.22(A), and ethnic intimidation, a
misdemeanor of the third degree in violation of R.C. 2927.12(A), as related to the
February 19, 2023 incident at the Famous Footwear store. L.M. was the alleged
victim of those charges. Additionally, Werling was found guilty of menacing, a
misdemeanor of the fourth degree in violation of R.C. 2903.22(A), as related to the
Facebook message that was sent to A.S. on April 2, 2023. A.S. was the alleged victim
of that charge.
R.C. 2903.22, the menacing statute, provides in relevant part that
“[n]o person shall knowingly cause another to believe that the offender will cause
physical harm to the person or property of the other person . . . .” R.C.
2903.22(A)(1). “A person acts knowingly, regardless of purpose, when the person is
aware that the person’s conduct will probably cause a certain result or will probably
be of a certain nature.” R.C. 2901.22(B). “Physical harm” is “any injury, illness, or
other physiological impairment, regardless of its gravity or duration.” R.C.
2901.01(A)(3).
R.C. 2927.12, the ethnic-intimidation statute, provides in relevant
part that “[n]o person shall violate section . . . 2903.22 . . . of the Revised Code by
reason of the race, color, religion, or national origin of another person or group of
persons.” R.C. 2927.12(A). As this court previously has stated, “‘[T]he crime of
ethnic intimidation occurs when a person commits a specified predicate offense by
reason of race, color, religion, or national origin.’” (Emphasis added.) State v. Wochele, 2019-Ohio-1122, ¶ 18 (8th Dist.), quoting State v. Wisniewski, 2000 Ohio
App. LEXIS 5220, *13 (8th Dist. Nov. 9, 2000).
With respect to the offenses relating to the incident on February 19,
2023, Werling does not dispute that she used a highly repugnant racial word. She
argues that there was never any threat made to any alleged victim and there was no
objective conduct that would lead a person to believe Werling was going to cause
physical harm. She further argues that her use of the “N” word was not coupled with
any threat of physical harm, nor were her actions taken because of L.M.’s race.
“To prove the elements of menacing, the prosecution must show that
the victim subjectively believed that there was a possibility of physical harm.” State
v. Harvey, 2023-Ohio-4454, ¶ 29 (6th Dist.), citing State v. McConnaughey, 2021-
Ohio-3320, ¶ 41 (1st Dist.). Menacing can be implied by an offender’s actions
without a verbal threat provided the circumstances demonstrate that the victim
genuinely believes that he or she is facing physical harm to person or property. Id.,
citing State v. Whitehead, 2019-Ohio-5141, ¶ 24 (2d Dist.). As this court has stated,
“The gist of the offense is the victim’s reasonable belief that . . . physical harm was
about to befall her.” State v. Walker, 2007-Ohio-4047, ¶ 14 (8th Dist.), citing State
v. Charlton, 2007-Ohio-2051, ¶ 13 (11th Dist.). A victim need not articulate a precise
fear; rather, it is sufficient for the State to establish the victim’s general fear for her
safety. Whitehead at ¶ 24, citing State v. Howard, 2010-Ohio-5158, ¶ 14 (2d Dist.).
The evidence herein shows that after being told on February 19, 2023,
that she was not allowed to be in the Famous Footwear store, Werling began screaming and yelling, repeatedly called L.M. a “n***** b****,” yelled out to Dave
and was accusing L.M. of having threatened her and telling Dave to call the police,
slammed the door, and continued yelling a racial slur directed at L.M. In the video,
L.M. states to go ahead and “call the police” because Werling was “trespassing.”
Once the door to the store was closed and as Werling was continuing to yell, L.M.
told A.S. to call the police and they locked the door. L.M. testified that she was
fearful that day and that she did not know what Werling was capable of. Although
L.M. did not initially report her feelings to police, she did indicate she was fearful
when an officer followed up with her a few days later. The responding officer
testified to Werling’s demeanor as being aggressive and “very animated.” When
viewing this and the other testimony and evidence presented in a light most
favorable to the prosecution, we find there was sufficient evidence to establish the
essential elements of menacing beyond a reasonable doubt as to this offense.
We also find sufficient evidence was presented to support Werling’s
conviction for ethnic intimidation. Initially, we recognize that the menacing offense
that occurred on February 19, 2023, is the predicate offense for the ethnic-
intimidation charge. The city did not identify L.M. as a victim of an offense
stemming from the April 2, 2023 Facebook incident. Nonetheless, as argued by the
city, the events of February 19, 2023, cannot be analyzed in a vacuum and, when
considering the totality of all three incidents involving Werling and L.M., Werling’s
racial animus as a motivating factor in the underlying offense is shown. Ethnic-intimidation laws are not aimed at regulating speech, but
instead proscribe conduct that is not protected under the First Amendment.
Wochele, 2019-Ohio-1122 at ¶ 23, citing State v. Kingery, 2012-Ohio-505 ¶ 21 (2d
Dist.); see also Wisconsin v. Mitchell, 508 U.S. 476, 487 (1993). Thus, words alone
generally are not enough to establish the offense of ethnic intimidation. See Kingery
at ¶ 20-22 (finding “no basis to conclude that [the defendant’s] reaction to the
spraying of her dog would have been more civilized or less ‘emotional’ if the mail
carrier had not been African American”); see also Wochele at ¶ 25 (finding no
evidence menacing acts were taken because of race with respect to an incident that
arose from a disagreement about where a car was parked); State v. Chopak, 2012-
Ohio-1537, ¶ 24 (8th Dist.) (finding no evidence menacing acts were taken because
of race when defendant’s actions were in response to victim refusing to back away
from confrontation she instigated). As recognized in Wochele, although use of the
“N word” is offensive, such repugnant or obnoxious language does not, “in itself,”
demonstrate that the menacing act was undertaken by reason of the victim’s race.
Id. at ¶ 25, citing Chopak at ¶ 24.
“To put it more plainly, becoming infuriated with someone for a non-
racial reason and, in the course of that angry altercation, hurling a slur does not
suffice to transform disorderly conduct into ethnic intimidation.” Columbus v.
Fabich, 2020-Ohio-7011, ¶ 39 (10th Dist.), citing Wochele at ¶ 25; Chopak at ¶ 24;
Kingery at ¶ 20. Rather, it must be shown that the defendant exhibited “a racial
animus directly tied to and as a motivating factor in the underlying offense to sustain the conviction.” See Wochele at ¶ 23, citing Kingery at ¶ 22. Also, the First
Amendment “does not prohibit the evidentiary use of speech to establish the
elements of a crime or to prove motive or intent.” Wisconsin at 489.
In Fabich, the Tenth District recognized that “it is not enough that
someone who becomes involved in an altercation utters racial slurs in the course of
the altercation; rather, the victim must be targeted ‘by reason’ of their race . . . .” Id.
at ¶ 39. The court found in that case that there was sufficient evidence to
demonstrate that the motive underlying the disorderly conduct was, at least in part,
racial when there was evidence of ongoing tensions between the two neighbors that
included a prior interaction in which one neighbor called the other a “Tarzan,” a lack
of a clear-cut explanation for the confrontation at hand, and the defendant
responded by presumably initiating the interaction and using a torrent of racially
abusive language. Id. at ¶ 44-45. Under the totality of those circumstances, the
court found the record permitted the jury to infer a racial motivation. Id. at ¶ 43-44.
Though the circumstances of this case are somewhat different from
Fabich, this also is not a case in which words alone were used to establish the offense
of ethnic intimidation. Here, the record demonstrates that there were three related
instances involving the employees of the Famous Footwear store in which Werling
brought race into the equation and directed racially abusive language at L.M.
Following the December 22, 2020 disagreement over the shoe return, Werling called
the store multiple times and made a racial slur directed at L.M. Then, on
February 19, 2023, after Werling returned to the store and was reminded that she was not permitted in the store, Werling began yelling a racial slur at L.M. and she
repeated yelling the slur multiple times as she engaged in the menacing conduct
against L.M. Following this incident, in the Facebook messaging sent to A.S. on
April 2, 2023, Werling continued to inject racially abusive language directed at L.M.,
while referencing the February incident at the store. In the message, Werling states
in part:
You and the giant orca working together as “managers” . . . both at the front plotting what that orca b**** was gonna say to me.
You then let the Giant f****** orca get in my face and threaten me in front of my daughter . . . ! . . . Bet your a** didn’t think I was gonna stand up to that giant f***** orca did you?!
...
Since that orca knows I have black family! She also knows what we are about lol!
Viewing the evidence in a light most favorable to the prosecution, we
find it could be reasonably inferred from Werling’s actions and ongoing behavior,
together with her repeated use of racially abusive language directed at L.M., that she
committed the February 19, 2023 menacing offense against L.M., at least in part, by
reason of race, color, religion, or national origin.
Last, as to the offense of menacing that arose from the Facebook
message that was sent to A.S. on April 2, 2023, Werling argues that the message did
not threaten A.S. but was an overt attempt to shame A.S. for what Werling believed
to be an injustice. We are not persuaded by her argument. The record reflects that
the Facebook message was sent a month and a half after the February 19, 2023 incident at the store. Werling went out of her way to look up A.S., and it was
apparent from the message that Werling was still angry about what happened at the
store and was upset with A.S. for “allowing that to happen” and for recording “once
I BUCK up!” After alluding to what her family is “all about,” Werling stated “Y’all
don’t want smoke I promise you that!!!!” She specifically referenced where A.S. lives
and works, stating, “For your sakes, I hope I never see y’all out, in Lorain, in
[Fairview Park], anywhere! Y’all lucky there was a door to my left because that whole
situation could have turned out differently if there wasn’t.” A.S. testified that her
first instinct was to call the police, that she took the message as Werling threatening
A.S., and that she felt unsafe. Viewing the testimony and evidence presented in a
light most favorable to the prosecution, we find there was sufficient evidence to
establish the essential elements of menacing beyond a reasonable doubt as to this
offense.
The first assignment of error is overruled.
Under her second assignment of error, Werling claims her
convictions are against the manifest weight of the evidence. When evaluating a
claim that a verdict is against the manifest weight of the evidence, “we review the
entire record, weigh the evidence and all reasonable inferences, consider the
credibility of witnesses, and determine whether in resolving conflicts in the
evidence, the [trier of fact] clearly lost its way and created such a manifest
miscarriage of justice that we must reverse the conviction and order a new trial.”
State v. Wilks, 2018-Ohio-1562, ¶ 168, citing State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). Reversing a conviction based upon the weight of the evidence should
occur “‘only in the exceptional case in which the evidence weighs heavily against the
conviction.’” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175
(1st Dist. 1983).
Werling argues that in addition to the arguments made under her
sufficiency challenge, when the testimony offered by the defense in this matter is
considered, the full picture of what actually occurred is evident and her convictions
should be reversed as against the manifest weight of the evidence. We do not agree.
After reviewing the entire record, weighing the evidence and all reasonable
inferences, and considering the credibility of the witnesses, we do not find the trial
court clearly lost its way and created such a manifest miscarriage of justice that the
convictions must be reversed. The second assignment of error is overruled as to the
menacing convictions.
Under her third assignment of error, Werling claims that the trial
court erred in failing to dismiss the charges pursuant to Crim.R. 29 because of a lack
of venue. Werling specifically challenges the menacing charge relating to the
Facebook message sent to A.S. She asserts that there was no testimony that the
alleged offense occurred in Fairview Park, that A.S. testified she lived in Lorain, and
that the city did not establish venue was proper as to the offense charged. It does
not appear from the record that Werling made any objection to venue at trial. When
a defendant fails to object to venue at trial, the defendant waives all but plain error.
See State ex rel. Whitt v. Harris, 2019-Ohio-4113, ¶ 10; State v. Jackson, 2014-Ohio-3707, ¶ 142, citing State v. Weber, 2013-Ohio-3172, ¶ 33 (2d Dist.). No
plain error has been shown.
As the Supreme Court of Ohio has recognized, “[v]enue is not a
material element of the offense charged[,]” but “venue is a fact that must be proved
beyond a reasonable doubt unless it is waived by the defendant.” Jackson at ¶ 143,
citing State v. Smith, 87 Ohio St.3d 424, 435 (2000); State v. Draggo, 65 Ohio St.2d
88, 90 (1981). Further, “venue ‘need not be proved in express terms so long as it is
established by all the facts and circumstances in the case.’” State v. Smith, 2024-
Ohio-5030, quoting State v. Headley, 6 Ohio St.3d 475, 477 (1983).
Pursuant to R.C. 2901.12(H), “When an offender, as part of a course
of criminal conduct, commits offenses in different jurisdictions, the offender may be
tried for all of those offenses in any jurisdiction in which one of those offenses or any
element of one of those offenses occurred.” “Thus, as long as there was evidence
from which the trial court could have determined beyond a reasonable doubt that
one of the alleged offenses was committed in Cuyahoga County as part of a course
of criminal conduct, then venue was properly established.” Jackson at ¶ 145, citing
State v. Beuke, 38 Ohio St.3d 29, 41 (1988). Among other means, prima facie
evidence of a course of criminal conduct may be established through proof that the
offenses involved the same victim or victims of the same type or from the same group
or were committed as part of the same transaction or chain of events or in
furtherance of the same purpose or objective. R.C. 2901.12(H)(1) and (3). Here, A.S. and L.M. worked together at Famous Footwear in Fairview
Park, the Facebook message sent to A.S. referenced the incident that occurred at the
Fairview Park store and stated, “I hope I never see you out in . . . Fairview Park,” and
A.S. informed her coworkers about the threatening messages. Because the evidence
adduced at trial demonstrated that the course of criminal conduct involved victims
from the same group and/or that they were part of the same chain of events with at
least one of the offenses occurring in Cuyahoga County, venue was proper. The third
assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant 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
municipal court to carry this judgment into execution. The defendant’s conviction
having been affirmed, any bail pending appeal is terminated. Case remanded to the
trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
______________________ SEAN C. GALLAGHER, JUDGE
EILEEN A. GALLAGHER, P.J., and MICHELLE J. SHEEHAN, J., CONCUR