[Cite as State v. Bingham, 2022-Ohio-2074.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-210434 TRIAL NO. 21CRB-3436 Plaintiff-Appellee, :
vs. : O P I N I O N.
TIANA BINGHAM, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: June 17, 2022
Andrew W. Garth, City Solicitor, William T. Horsley, Chief Prosecuting Attorney, and Jennifer Bishop, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and David Hoffman, Assistant Public Defender, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Judge.
{¶1} Defendant-appellant Tiana Bingham appeals the trial court’s judgment
convicting her of menacing in violation of R.C. 2903.22. For the following reasons, we
affirm the trial court’s judgment.
Relevant Facts and Procedural History
{¶2} Bingham was charged with aggravated menacing after Joelle Armstead
reported to Cincinnati police that Bingham had threatened her.
{¶3} Bingham had been scheduled for trial in May and June 2021, but the
trials did not go forward due to a police officer being unavailable one day and the
prosecuting witness being unavailable on the other day.
{¶4} At a July 2021 trial setting, the court stated that it had an appointment
at 2:00 p.m. that day. The court offered to start the trial and continue it in progress,
but the prosecuting witness had to leave. Bingham orally moved for dismissal, pointing
to the unavailability of the prosecuting witness and a police officer at the two previous
settings and the court’s unavailability that day. Bingham did not assert her speedy-
trial rights. The court denied her motion, stated that the continuance was at the court’s
request, and that it would toll the speedy-trial time under R.C. 2945.72.
{¶5} At the August 2021 trial, Armstead was the only witness. She testified
that, while standing on the patio at a bar, she overheard Bingham state that
“[Armstead] going to get her ass beat and drug through the bar” and that Bingham
would shoot her. Bingham was there with Armstead’s ex-boyfriend, Donovan Squire.
When Armstead asked Bingham about what she had overheard, Squire told Armstead
to leave. Bingham followed her. Armstead testified that Bingham did not show her a
gun, but she knew that Bingham carried one. 2 OHIO FIRST DISTRICT COURT OF APPEALS
{¶6} Armstead testified that she felt threatened by Bingham’s statements, so
she needed to make a report “before something drastic happen[ed].” She added that
Bingham had been getting into her personal space and calling her names. She testified
that, on a couple of occasions, Bingham had “bumped into” Armstead. Armstead
stated that she believed Bingham was going to harm her, so she called Elmwood police
when she got home from the bar.
{¶7} Elmwood police called Armstead the following morning and advised her
that she needed to file the report with Cincinnati police. Armstead called 911.
Cincinnati police responded to Armstead’s home that day. Armstead testified that she
was scared on the day after the altercation because, “When you say you’re going to
shoot me, and my son got murdered, yeah I was scared because I don’t know what can
happen.”
{¶8} After the state rested, Bingham moved for a Crim.R. 29 dismissal, which
was denied.
{¶9} The trial court found that Bingham did not brandish a gun and that
there was no threat of immediate harm. It convicted Bingham of the lesser-included
offense of menacing under R.C. 2903.22. The trial court sentenced Bingham to 30 days
in jail with 30 days suspended, court fines and costs, and six months of non-reporting
probation. The court ordered Bingham to stay away from Armstead.
Law and Analysis
A. Bingham waived argument involving speedy-trial rights
{¶10} In Bingham’s first assignment of error, she argues that her speedy-trial
rights were violated. She asserts that she moved for dismissal on day 95 of the speedy-
trial clock.
3 OHIO FIRST DISTRICT COURT OF APPEALS
{¶11} “Failure to raise the speedy-trial issue prior to the commencement of
trial effects a waiver of the claim.” State v. Peoples, 1st Dist. Hamilton No. C-940809,
1995 Ohio App. LEXIS 4033, *8 (Sept. 20, 1995).
{¶12} Bingham moved to dismiss twice. She first moved for dismissal at the
July 2021 trial date, but her argument involved the unavailability of witnesses and the
court. While the court stated that it was tolling time under R.C. 2945.72, Bingham did
not raise speedy-trial time as a basis for her motion. The other request for a dismissal
was an oral Crim.R. 29 motion for an acquittal that was made after the state rested.
{¶13} Bingham did not raise the expiration of her speedy-trial time below.
Consequently, her first assignment of error is overruled.
B. Conviction of a Lesser-Included Charge
{¶14} In her second assignment of error, Bingham contends that the trial
court’s conviction for menacing was contrary to the manifest weight of the evidence.
{¶15} In reviewing a weight-of-the-evidence claim, this court must review
“the entire record, weigh the evidence and all reasonable inferences, consider
the credibility of the 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 the conviction must be reversed and a new trial ordered.” State v. Bailey,
1st Dist. Hamilton No. C-140129, 2015-Ohio-2997, ¶ 59, quoting State v.
Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). This court will not substitute
its judgment for that of the trier of fact on the issue of witness credibility unless it is
patently apparent that the trier of fact lost its way in arriving at its verdict. Bailey at ¶
63.
4 OHIO FIRST DISTRICT COURT OF APPEALS
{¶16} Bingham was charged with aggravated menacing under R.C.
2903.21(A), but the trial court convicted her of menacing under R.C. 2903.22.
Bingham asserts that by convicting her of the lesser-included offense, its conviction
was contrary to the weight of the evidence. Aggravated menacing occurs when a person
“knowingly causes[s] another to believe that the offender will cause serious physical
harm to the person.” R.C. 2903.21(A). Menacing, a lesser-included offense, occurs
when a person “knowingly cause[s] another to believe that the offender will cause
physical harm to the person.” R.C. 2903.22.
{¶17} Generally, a trial court may enter a judgment of conviction on a lesser-
included offense, an offense of an inferior degree, or an attempt to commit the greater
charged offense. Crim.R. 31(C). A court must charge on a lesser-included offense “only
where the evidence presented at trial would reasonably support both an acquittal on
the crime charged and a conviction upon the lesser included offense.” (Internal
citations omitted.) State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d
127, ¶ 241.
{¶18} Once the trial court confirmed that Bingham had not brandished a gun,
it correctly concluded that Bingham met the elements of menacing as the record
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[Cite as State v. Bingham, 2022-Ohio-2074.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-210434 TRIAL NO. 21CRB-3436 Plaintiff-Appellee, :
vs. : O P I N I O N.
TIANA BINGHAM, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: June 17, 2022
Andrew W. Garth, City Solicitor, William T. Horsley, Chief Prosecuting Attorney, and Jennifer Bishop, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and David Hoffman, Assistant Public Defender, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Judge.
{¶1} Defendant-appellant Tiana Bingham appeals the trial court’s judgment
convicting her of menacing in violation of R.C. 2903.22. For the following reasons, we
affirm the trial court’s judgment.
Relevant Facts and Procedural History
{¶2} Bingham was charged with aggravated menacing after Joelle Armstead
reported to Cincinnati police that Bingham had threatened her.
{¶3} Bingham had been scheduled for trial in May and June 2021, but the
trials did not go forward due to a police officer being unavailable one day and the
prosecuting witness being unavailable on the other day.
{¶4} At a July 2021 trial setting, the court stated that it had an appointment
at 2:00 p.m. that day. The court offered to start the trial and continue it in progress,
but the prosecuting witness had to leave. Bingham orally moved for dismissal, pointing
to the unavailability of the prosecuting witness and a police officer at the two previous
settings and the court’s unavailability that day. Bingham did not assert her speedy-
trial rights. The court denied her motion, stated that the continuance was at the court’s
request, and that it would toll the speedy-trial time under R.C. 2945.72.
{¶5} At the August 2021 trial, Armstead was the only witness. She testified
that, while standing on the patio at a bar, she overheard Bingham state that
“[Armstead] going to get her ass beat and drug through the bar” and that Bingham
would shoot her. Bingham was there with Armstead’s ex-boyfriend, Donovan Squire.
When Armstead asked Bingham about what she had overheard, Squire told Armstead
to leave. Bingham followed her. Armstead testified that Bingham did not show her a
gun, but she knew that Bingham carried one. 2 OHIO FIRST DISTRICT COURT OF APPEALS
{¶6} Armstead testified that she felt threatened by Bingham’s statements, so
she needed to make a report “before something drastic happen[ed].” She added that
Bingham had been getting into her personal space and calling her names. She testified
that, on a couple of occasions, Bingham had “bumped into” Armstead. Armstead
stated that she believed Bingham was going to harm her, so she called Elmwood police
when she got home from the bar.
{¶7} Elmwood police called Armstead the following morning and advised her
that she needed to file the report with Cincinnati police. Armstead called 911.
Cincinnati police responded to Armstead’s home that day. Armstead testified that she
was scared on the day after the altercation because, “When you say you’re going to
shoot me, and my son got murdered, yeah I was scared because I don’t know what can
happen.”
{¶8} After the state rested, Bingham moved for a Crim.R. 29 dismissal, which
was denied.
{¶9} The trial court found that Bingham did not brandish a gun and that
there was no threat of immediate harm. It convicted Bingham of the lesser-included
offense of menacing under R.C. 2903.22. The trial court sentenced Bingham to 30 days
in jail with 30 days suspended, court fines and costs, and six months of non-reporting
probation. The court ordered Bingham to stay away from Armstead.
Law and Analysis
A. Bingham waived argument involving speedy-trial rights
{¶10} In Bingham’s first assignment of error, she argues that her speedy-trial
rights were violated. She asserts that she moved for dismissal on day 95 of the speedy-
trial clock.
3 OHIO FIRST DISTRICT COURT OF APPEALS
{¶11} “Failure to raise the speedy-trial issue prior to the commencement of
trial effects a waiver of the claim.” State v. Peoples, 1st Dist. Hamilton No. C-940809,
1995 Ohio App. LEXIS 4033, *8 (Sept. 20, 1995).
{¶12} Bingham moved to dismiss twice. She first moved for dismissal at the
July 2021 trial date, but her argument involved the unavailability of witnesses and the
court. While the court stated that it was tolling time under R.C. 2945.72, Bingham did
not raise speedy-trial time as a basis for her motion. The other request for a dismissal
was an oral Crim.R. 29 motion for an acquittal that was made after the state rested.
{¶13} Bingham did not raise the expiration of her speedy-trial time below.
Consequently, her first assignment of error is overruled.
B. Conviction of a Lesser-Included Charge
{¶14} In her second assignment of error, Bingham contends that the trial
court’s conviction for menacing was contrary to the manifest weight of the evidence.
{¶15} In reviewing a weight-of-the-evidence claim, this court must review
“the entire record, weigh the evidence and all reasonable inferences, consider
the credibility of the 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 the conviction must be reversed and a new trial ordered.” State v. Bailey,
1st Dist. Hamilton No. C-140129, 2015-Ohio-2997, ¶ 59, quoting State v.
Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). This court will not substitute
its judgment for that of the trier of fact on the issue of witness credibility unless it is
patently apparent that the trier of fact lost its way in arriving at its verdict. Bailey at ¶
63.
4 OHIO FIRST DISTRICT COURT OF APPEALS
{¶16} Bingham was charged with aggravated menacing under R.C.
2903.21(A), but the trial court convicted her of menacing under R.C. 2903.22.
Bingham asserts that by convicting her of the lesser-included offense, its conviction
was contrary to the weight of the evidence. Aggravated menacing occurs when a person
“knowingly causes[s] another to believe that the offender will cause serious physical
harm to the person.” R.C. 2903.21(A). Menacing, a lesser-included offense, occurs
when a person “knowingly cause[s] another to believe that the offender will cause
physical harm to the person.” R.C. 2903.22.
{¶17} Generally, a trial court may enter a judgment of conviction on a lesser-
included offense, an offense of an inferior degree, or an attempt to commit the greater
charged offense. Crim.R. 31(C). A court must charge on a lesser-included offense “only
where the evidence presented at trial would reasonably support both an acquittal on
the crime charged and a conviction upon the lesser included offense.” (Internal
citations omitted.) State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d
127, ¶ 241.
{¶18} Once the trial court confirmed that Bingham had not brandished a gun,
it correctly concluded that Bingham met the elements of menacing as the record
reflected that she “knowingly caused [Armstead] to believe that [Bingham] would
cause physical harm to [Armstead].” Armstead overheard Bingham make a threat
using Armstead’s name. Bingham verbally accosted Armstead when she addressed
Bingham directly. Armstead attempted to remove herself from the situation, but
Bingham continued to pursue her and make threats.
{¶19} The trial court was in the best position to determine whether Armstead’s
testimony was credible. The testimony at trial supports Bingham’s conviction. This is
5 OHIO FIRST DISTRICT COURT OF APPEALS
not one of those rare cases in which the trial court lost its way and created a manifest
injustice. Bingham’s second assignment of error is overruled.
Conclusion
{¶20} Bingham did not raise the speedy-trial issue below, thus waiving this
argument. Her conviction of the lesser included offense of menacing was proper,
within the court’s discretion, and not against the manifest weight of the evidence. We
therefore affirm the trial court’s judgment.
Judgment affirmed.
ZAYAS, P.J., and BERGERON, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.