State v. Anderson

2024 Ohio 2003

Opinion

[Cite as State v. Anderson, 2024-Ohio-2003.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Appellee : C.A. No. 29990 : v. : Trial Court Case No. 23-CRB-1517 : ERIC ANDERSON : (Criminal Appeal from Municipal Court) : Appellant : :

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OPINION

Rendered on May 24, 2024

DAVID R. MILES, Attorney for Appellant

ALISSA SCHRINER, Attorney for Appellee

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LEWIS, J.

{¶ 1} Defendant-Appellant Eric Anderson appeals from his conviction for

aggravated menacing following a bench trial in the Dayton Municipal Court. Anderson

contends that the trial court’s judgment was not supported by sufficient evidence and was

against the manifest weight of the evidence because he was more credible than the

complaining witness. For the following reasons, we will affirm the judgment of the trial -2-

court.

I. Facts and Course of Proceedings

{¶ 2} On May 5, 2023, a criminal complaint was filed in Dayton Municipal Court

alleging that Anderson had committed the offense of aggravated menacing, a first-degree

misdemeanor in violation of R.C. 2903.21(A). Anderson filed a demand for a jury trial

and waived his right to be tried within the time provided by R.C. 2945.71. Anderson

subsequently filed a waiver of his right to a jury trial.

{¶ 3} A bench trial was held on August 21, 2023. Steve Smith, the information

technology manager at the Montgomery County Sheriff’s Office, testified first. Tr. 5-7.

He verified that the video recording presented by the State was a true and accurate

recording from cameras positioned on Second Street in downtown Dayton.

{¶ 4} Bruce May testified next. Id. at 7-51. May was a cold case investigator with

the Dayton Police Department and was the complaining witness in this case. He had

worked for over 40 years in law enforcement. On the morning of May 4, 2023, shortly

before 8:00 a.m., May was traveling northbound on Main Street in downtown Dayton.

After passing through some construction, May noticed Anderson driving a white truck and

coming up next to his vehicle on Main Street. May eventually turned left onto Monument

Street and then left onto Ludlow Street. As he turned onto Ludlow Street, May noticed

in his rear-view mirror that Anderson’s vehicle was turning onto Monument Street. As

he proceeded down Ludlow, May turned right onto Second Street. He then stopped in

the right-hand lane at the first stop light on Second Street. At that time, Anderson’s -3-

vehicle pulled up in the lane next to May’s vehicle, and Anderson raised his middle finger

at May while saying something to him. May rolled his window down so he could hear

what Anderson was saying. May testified that Anderson said, “You are an asshole and

I’m going to whip your ass.” May tried to de-escalate the situation and responded, “If I

did anything wrong to you, I’m sorry I didn’t mean that.” Anderson then stated, “I don’t

believe you. You think you have a newer car than I do. I retired from G.M. and I’m

going to kill you. Do you understand that I’m going to kill you?”

{¶ 5} The traffic light changed to green, and May proceeded to pull forward away

from the light. As he did so, May took his gun out of his pocket and put it in a more

accessible place in case he needed it. May crossed Perry Street and slowed down

behind vehicles that were waiting to turn into a parking lot. Anderson passed by May’s

vehicle and again yelled at May while raising his middle finger at him. Anderson did a

U-turn and headed in the opposite direction on Second Street. May took out his cell

phone and took a picture of Anderson’s vehicle. Anderson then did another U-turn and

approached May’s vehicle from the rear. May decided to park to try to de-escalate the

situation. After parking, May exited his truck and entered property that Anderson could

not access with his vehicle. May saw Anderson pointing something black at him but

could not determine what it was. May ultimately lost sight of Anderson and did not see

him again that day. May then filed a police report about the incident.

{¶ 6} May testified that Anderson was uncontrollable and argumentative during

their brief interaction. May made the decision to park in what was not his normal parking

spot in order to get to safety and de-escalate the situation more quickly. May was fearful -4-

for his own life and the safety of others around the situation. According to May, “I was

completely threatened by his actions of saying he was going to kill me and he sounded

very [passionate] about that when he said, ‘do you understand me?’. I’ve never had

anybody say that to me in my life and it’s very threatening.”

{¶ 7} Anderson testified last at the trial. Tr. 53-60. He was 63 years old at the

time of the trial. On the morning of May 4, 2023, Anderson was heading home after

dropping off a friend. According to Anderson, he was driving his white truck in downtown

Dayton when May drove left of center and cut off Anderson’s vehicle. This caused

Anderson to have road rage. Anderson testified that people cut him off three or four

times a day when he drives his truck. As a result of being cut off, Anderson repeatedly

cursed at May and gave him the middle finger. He testified that he does the same thing

when other people cut him off on the road. Anderson denied that he had threatened

May. Rather, he stated that he said the following to May:

I remember exactly what I said. Again, I told him – I gave him the

finger, I told him he was – I called him an M.F. or S.O.B. and I told him he

don’t need to be driving no truck no better than that if you can’t drive. I also

told him that I used to work for G.M. and I never told him I retired. I been

laid off four or five years now and I know what I’m doing and I know when

people do it on purpose. That’s what I told him.

Id. at 59-60.

{¶ 8} Anderson stated that he was too old to be threatening others. He explained

that he did not own a gun and he did not have a cell phone with him during the incident. -5-

Anderson had never met May prior to that day.

{¶ 9} On September 5, 2023, the trial court found Anderson guilty of aggravated

menacing. Following a sentencing hearing, the trial court sentenced Anderson to 180

days in jail but suspended all 180 days. Anderson was placed on supervised probation

for up to one year with the conditions that he complete the MAD Program through the

probation department and comply with any treatment through the Drew Health Center.

The trial court imposed a fine of $25 plus court costs. Anderson filed a timely appeal

from the trial court’s judgment.

II. Anderson’s Conviction Was Supported by Sufficient Evidence and Was Not

Against the Manifest Weight of the Evidence

{¶ 10} Anderson raises the following two assignments of error:

APPELLANT’S CONVICTION FOR AGGRAVATED MENACING IS

BASED UPON INSUFFICIENT EVIDENCE.

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 11} Anderson’s assignments of error assert that his conviction for aggravated

menacing was against the manifest weight of the evidence and not supported by sufficient

evidence. Because these assignments of error are interrelated, we will address them

together.

{¶ 12} “The legal concepts of sufficiency of the evidence and weight of the

evidence are both quantitatively and qualitatively different.” State v. Thompkins, 78 Ohio -6-

St.3d 380, 386, 678 N.E.2d 541 (1997). “An appellate court's function when reviewing

the sufficiency of the evidence to support a criminal conviction is to examine the evidence

admitted at trial to determine whether such evidence, if believed, would convince the

average mind of the defendant's guilt beyond a reasonable doubt.” State v. Jenks, 61

Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. “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., citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781,

61 L.Ed.2d 560.

{¶ 13} When reviewing the sufficiency of the evidence, “the court does not engage

in a determination of the witnesses' credibility.” State v. Goff, 82 Ohio St.3d 123, 139,

694 N.E.2d 916 (1998), citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212

(1967), paragraph one of the syllabus. Rather, the relevant inquiry is whether the

evidence presented, if believed, was sufficient to support the conviction. State v. Jones,

166 Ohio St.3d 85, 2021-Ohio-3311, 182 N.E.3d 1161, ¶ 16, citing Thompkins at 390.

The verdict will not be disturbed on appeal unless “the appellate court finds that

reasonable minds could not reach the conclusion reached by the trier-of-fact.” State v.

Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997), citing Jenks at 273

{¶ 14} “[A] weight of the evidence argument challenges the believability of the

evidence and asks which of the competing inferences suggested by the evidence is more

believable or persuasive.” (Citation omitted.) State v. Wilson, 2d Dist. Montgomery No.

22581, 2009-Ohio-525, ¶ 12. When evaluating whether a conviction is against the -7-

manifest weight of the evidence, the appellate court must 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.” Thompkins at 387, citing State v. Martin, 20 Ohio App.3d 172, 175,

485 N.E.2d 717 (1st Dist.1983). The fact that the evidence is subject to different

interpretations does not render a conviction against the manifest weight of the evidence.

Wilson at ¶ 14. A judgment of conviction 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.” (Citations omitted.) Martin at 175.

{¶ 15} Based on the record before us, we must conclude that the conviction was

supported by sufficient evidence and was not against the manifest weight of the evidence.

Anderson was charged with and found guilty of aggravated menacing in violation of R.C.

2903.21(A), which provides, in part: “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.”

Anderson contends that May’s “beliefs must be rational or reasonable under the

circumstances of the case.” Appellant’s Brief, p. 5. According to Anderson, he neither

possessed nor brandished a gun, and “[t]hreats without the ability to carry out the threats

is insufficient for a conviction of aggravated menacing.” Id. Anderson believes May was

not fearful for his life and only testified that he was in order to secure a conviction. Id. at

5-6. -8-

{¶ 16} Anderson cites three cases in support of his contention that the facts of this

case did not establish aggravated menacing. Anderson first cites Garfield Hts. v. Greer,

8th Dist. Cuyahoga No. 87078, 2006-Ohio-5936, which involved a road rage incident.

The Eighth District noted, “The victim did not testify to any subjective belief that Greer

would cause him serious physical harm. There was no evidence that the victim was

scared or rattled from the incident. The victim merely testified that Greer ‘pops a gun

out,’ not that Greer had pointed the gun at him.” Id. at ¶ 7. Anderson next cites Walton

Hills v. Tate, 2016-Ohio-697, 60 N.E.3d 611 (8th Dist.), which also involved an incident

of road rage. There, the Eighth District concluded that “no testimony was adduced that

established that [the victim] believed she would suffer serious physical harm at the hands

of Tate. Tate’s actions while foreboding, do not constitute a threat of serious physical

harm. [The victim] only testified that Tate screamed ‘pretty provocative and mean things

at me.’ She never testified that she believed she was in danger of serious physical harm

from Tate.” Id. at ¶ 15. Finally, Anderson cites State v. Britton, 181 Ohio App.3d 415,

2009-Ohio-1282, 909 N.E.2d 176 (2d Dist.), which involved a pharmacy employee who

was confronted in her employer’s parking lot by a customer over an incident that had

occurred a year prior. Based on a review of that record, we stated that “no testimony

was adduced that established that [the victim] believed that she would suffer serious

physical harm at the hands of Britton. * * * [Her] testimony that Britton’s statement only

made her ‘a little nervous’ further demonstrates that [she] did not believe that she was in

danger of serious physical harm from Britton.” Id. at ¶ 51. We then concluded,

“[a]lthough the evidence was that [the victim] was intimidated and justifiably unnerved, it -9-

cannot support a finding of a belief that Britton would cause her or her property ‘serious

physical harm.’ ” Id.

{¶ 17} The cases cited by Anderson are inapposite to the facts before us in this

appeal. In accordance with R.C. 2903.21(A), the State was required to prove that

Anderson knowingly caused May to believe that Anderson would cause May serious

physical harm. Unlike the victim testimony in the cases cited by Anderson, May testified

at trial that Anderson had threatened to kill him after following May’s vehicle. May

described Anderson as passionate, uncontrollable, and argumentative. May stated that

he was fearful for his own life. As a result of Anderson’s threats, May was concerned

enough about his safety that he took his gun out of his pocket to prepare to protect himself

and parked where he normally did not park in order to get to safety more quickly. Further,

Anderson conceded that he exhibited road rage during his interaction with May on May

4, 2023. Given this evidence, a rational trier of fact could have found beyond a

reasonable doubt that Anderson knowingly caused May to believe that Anderson would

cause serious physical harm to May. Therefore, Anderson’s conviction was supported

by sufficient evidence.

{¶ 18} Finally, Anderson argues that his conviction was against the manifest

weight of the evidence because his “trial testimony was more credible than witness May.”

Appellant’s Brief, p. 7. May testified in detail how the events unfolded on the morning of

May 4, 2023, and what effect Anderson’s actions had on May. The only real dispute in

the record was over what exactly Anderson said to May when they both were stopped at

the red light on Second Street just east of Perry Street. May testified that Anderson had -10-

threatened to kill him and that he was passionate about that statement. Anderson stated

that he had simply cursed repeatedly at May due to road rage caused by May’s cutting

off Anderson’s vehicle. Anderson did not dispute that he had pursued May that morning

and that he had been very upset with May. In the end, this case came down to witness

credibility. Based on the record before us, we cannot conclude that this is one of those

exceptional circumstances in which the evidence weighed heavily against the conviction.

{¶ 19} The assignments of error are overruled.

III. Conclusion

{¶ 20} Having overruled both of Anderson’s assignments of error, the judgment of

the trial court will be affirmed.

EPLEY, P.J. and TUCKER, J., concur.