State v. Bishop

2025 Ohio 2664

Opinion

[Cite as State v. Bishop, 2025-Ohio-2664.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. Craig R. Baldwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Kevin W. Popham, J. -vs-

JAMES K. BISHOP Case No. 2025 CA 0012

Defendant-Appellant OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Richland County Court of Common Pleas, Case No. 2023-CR- 0948R

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: July 29, 2025

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JODIE M. SCHUMACHER JAMES K. BISHOP a704375 Prosecuting Attorney Noble Correctional Institution Richland County, Ohio 15708 McConnellsville Road Caldwell, Ohio 43724 MICHELLE FIND Assistant Prosecuting Attorney Richland County, Ohio 38 South Park Street Mansfield, Ohio 44902 Hoffman, J. {¶1} Defendant-appellant James K. Bishop appeals the judgment of the Richland

County Common Pleas Court convicting him following jury trial of one count of intimidation

(R.C. 2921.03((A)) and two counts of extortion (R.C. 2905.11(B)(4)), and sentencing him

to an aggregate term of incarceration of sixty-six months. Plaintiff-appellee is the State

of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} In 2018, Appellant was convicted of theft, receiving stolen property,

safecracking, and burglary in an Ohio Common Pleas Court. Following his conviction,

Appellant filed numerous postconviction motions, including a motion for judicial release.

The trial court judge in Appellant’s case (hereinafter “the judge”), who is one of the victims

in the instant case, denied the motion for judicial release. Appellant was incarcerated in

the Richland Correctional Institution.

{¶3} On August 30, 2022, Appellant sent the judge a personal letter. The letter

claimed in September of 2016, Appellant was building a yurt for the judge’s neighbor.

The judge, the judge’s wife (who is the second victim in the instant case), and two of their

children came to see the yurt while Appellant was working. Appellant claimed he held the

hand of the judge’s wife to help her walk to the yurt. Appellant claimed a few days later,

the judge’s wife came to the yurt and asked Appellant to come to her home to do some

work. When Appellant was at the home, he claimed the judge’s wife performed oral sex

on Appellant, and Appellant recorded the sexual activity on his phone. Appellant told the

judge if he did not recuse himself and transfer Appellant’s case to another county,

Appellant would send the video to several television stations. The letter stated Appellant

was giving the judge a chance to save himself and his family from shame. The letter stated, “If I don’t hear anything by September 25th, 2022, well, you know what’s coming.”

Tr. 287.

{¶4} Appellant also filed a grievance against the judge in the Ohio Supreme

Court. In documents filed with the Supreme Court, Appellant repeated the allegation

Appellant had sexual relations with the judge’s wife after meeting her at the yurt. .

{¶5} According to the judge, his neighbors constructed a yurt on their property,

and the judge and his wife would visit the yurt during its construction out of curiosity for

the unusual construction style. However, they only visited the yurt in the evenings, and

did not see any construction workers on site at any time. Further, their children were

adults and did not visit the neighbors’ yurt with them.

{¶6} Trooper Bryan Butler of the Ohio State Highway Patrol interviewed

Appellant twice in prison about the letter. Appellant gave him the names of several people

to contact regarding the video of the alleged incident with the judge’s wife. The Trooper

was unable to confirm the existence of the video. Although Appellant claimed his sons

had viewed the video, Appellant’s sons denied knowledge of the video.

{¶7} Appellant was indicted by the Richland County Grand Jury with two counts

of extortion and one count of intimidation. The case proceeded to jury trial in the Richland

County Common Pleas Court, at which Appellant represented himself, with standby

counsel.

{¶8} Appellant testified at trial he believed the woman who performed fellatio on

him was the judge’s wife, but after seeing her in court, he was not sure it was the same

woman. He said the woman he met with the judge at the yurt, whom he later had sexual

relations with, might have been the judge’s mistress or sister. He testified he could not understand why the judge refused to believe he was innocent, and the only conclusion

he could come to was there was a conflict between himself and the judge, caused by the

sexual incident. Tr. 402.

{¶9} The jury found Appellant guilty of all counts and the trial court convicted him

in accordance with the jury’s verdict. The court merged one conviction of extortion with

the conviction of intimidation, and sentenced Appellant to thirty months in prison for

intimidation. The trial court sentenced Appellant to thirty-six months incarceration for the

remaining extortion conviction, to be served consecutively, for an aggregate term of

incarceration of sixty-six months. It is from the January 16, 2025 judgment of the trial

court Appellant prosecutes his appeal, assigning as error:1

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN

DENYING THE DEFENDANT’S MOTION FOR THE DISMISSAL OF THE

INDICTMENT BASED UPON THE VIOLATION OF HIS RIGHT TO A

SPEEDY TRIAL UNDER R.C. 2941.401.

II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN

DENYING THE DEFENDANT’S MOTION FOR THE DIMISSAL OF THE

INDICTMENT BASED UPON VINDICTIVENESS [SIC] PROSECUTION,

PROSECUTOR MISCONDUCT.

III. THE TRIAL COURT ERRED WHEN IT OVERRULED MR.

BISHOP’S MOTION FOR JUDGMENT OF ACQUITTAL AS TO COUNTS

1 Throughout Appellant’s brief, he has raised issues not related to the assignment of error in which they are

made. Pursuant to App. R. 12(A)(2), we disregard any argument not separately assigned as error as required by App. R. 16(A). 1, 2 AND 3 OF THE INDICTMENT BECAUSE THE STATE OF OHIO

FAILED TO PRODUCE ANY EVIDENCE AND PROVE ALL THE

ESSENTIAL ELEMENTS THAT MR. BISHOP HAD ATTEMPTED TO

OBTAIN ANY VALUABLE THING OR BENEFIT FROM THE VICTIM, NOR

ESTABLISH ANY UNLAWFUL THREAT OF HARM.

IV. THE TRIAL COURT ERRED TO THE PREJUDICE OF MR.

BISHOP WHEN IT FAILED TO INSTRUCT THE JURY ON EVERY

ESSENTIAL ELEMENT OF THE OFFENSE OF EXTORTION AS TO

COUNTS, 2 AND 3 OF THE INDICTMENT AND AS TO THE LESSOR [SIC]

CHARGE OF COERCION, THE FAILURE TO INSTRUCT THE JURY ON

EVERY ESSENTIAL ELEMENT OF AN OFFENSE, AND TO THE LESSOR

[SIC] CHARGE OF COERCION, VIOLATES MR. BISHOP’S RIGHTS TO

DUE PROCESS OF LAW AND TO TRIAL BY JURY AS GUARANTEED BY

THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION

AND THE DUE PROCESS CLAUSE OF THE FOURTEENTH

AMENDMENT TO THE UNITED STATES CONSTITUTION, FAILURE TO

INSTRUCT ON AN ESSENTIAL ELEMENT OF AN OFFENSE, AND TO

THE LESSOR [SIC] CHARGE OF COERCION, IS A CONSTITUTIONAL

VIOLATION SO FUNDAMENTAL THAT IT IS NOT SUBJECT TO

HARMLESS ERROR ANALYSIS.

V. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF

COUNSEL DURING TRIAL BY COUNSEL’S REFUSAL TO CALL

WITNESSES THAT DEFENDANT REQUESTED, AND THAT WERE AVAILABLE AND WILLING TO TESTIFY IN BEHALF OF DEFENDANT,

AND THUS, DENYING DEFENDANT HIS RIGHTS GUARANTEED

UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE

CONSTITUTION OF THE UNITED STATES.

VI. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE

OF COUNSEL DURING TRIAL, BY COUNSEL’S REFUSAL TO BRING

FORTH EVIDENCE WHICH DEFENDANT HAD KNOWLEDGE OF, AND

HAD REQUESTED TO BE PRESENTED, AND THUS, DENIED

DEFENDANT OF HIS RIGHTS THAT ARE GUARANTEED UNDER THE

SIXTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF

THE UNITED STATES.

VII. THE TRIAL COURT ERRED TO THE PREJUDICE OF MR.

BISHOP WHEN IT DENIED MR. BISHOP’S PRE-TRIAL MOTION FOR AN

EXTENSION OF TIME TO FILE HIS PRE-TRIAL MOTIONS, ACCORDING

HIM AMPLE AMOUNT OF TIME TO REQUEST THE STATE FOR THEIR

DISCOVERY AND WITNESS LIST, AND TO PROVIDE THE STATE WITH

HIS DISCOVERY AND WITNESS LIST, THAT HIS TWO PRIOR PUBLIC

DEFENDERS FAILED TO DO, RESULTING IN MR. BISHOP WAIVING

HIS RIGHT TO COUNSEL AND PROCEEDING IN PRO-SE, DUE TO

THEIR INEFFECTIVENESS OF COUNSEL BEFORE TRIAL. I.

{¶10} In his first assignment of error, Appellant argues the trial court erred in

denying his motion to dismiss the indictment for violation of his right to speedy trial.

Appellant argues he was not given a written statement from the warden explaining his

right to file for a final disposition upon receipt of the indictment, and further argues the

speedy trial clock started when he filed a motion to dismiss the indictment in the trial court

on July 14, 2023.

{¶11} On April 1, 2024, Appellant signed a waiver of his rights to speedy trial.

Following an express written waiver of unlimited duration by an accused of his speedy

trial rights, the accused is not entitled to a discharge for delay in bringing him to trial unless

the accused files a formal written objection to any further continuances and makes a

demand for trial, following which the state must bring him to trial within a reasonable time.

State v. O'Brien, 34 Ohio St.3d 7, 9 (1987).

{¶12} On August 12, 2024, Appellant filed a pro se motion to dismiss the

indictment for violation of his right to speedy trial. The motion did not reference his prior

waiver of his speedy trial rights, did not object to further continuances, and did not make

a demand for trial. Further, the motion was filed pro se at a time when Appellant was

represented by counsel. As noted by the trial court in overruling the motion to dismiss,

Appellant had no right to a hybrid form of representation where he is represented by

counsel but also acting as his own counsel, and the trial court would not consider

documents filed by Appellant pro se. Judgment Entry, August 13, 2024, citing State v.

Keenan, 81 Ohio St. 3d 133, 138 (1998). {¶13} We find Appellant signed an express written waiver of his speedy trial rights

of unlimited duration, and did not thereafter file a formal written objection to further

continuances and a demand for trial. The first assignment of error is overruled.

II.

{¶14} In his second assignment of error, Appellant argues prosecutorial

vindictiveness because the State punished him for exercising his constitutional right to

seek the recusal of a biased judge. Appellant also argues the prosecutor committed

misconduct in the grand jury proceedings. We disagree.

{¶15} The Due Process Clause guarantees against prosecutorial vindictiveness,

and the State may not constitutionally retaliate against a defendant for exercising his

rights. Blackledge v. Perry, 417 U.S. 21, 28-29 (1974). In the pretrial context, as in the

instant case, there is no presumption of vindictiveness, and therefore Appellant must

show actual vindictiveness. See, e.g., State v. Nash, 2001 WL 520973 (5th Dist.), citing

State v. Semenchuk, 122 Ohio App.3d 30, 38 (8th Dist. 1997) (in pretrial setting,

prosecutor is free to seek indictment on whatever charges the evidence can support, and

no presumption of vindictiveness will attach if the defendant was clearly subject to those

charges at the outset). In the instant case, Appellant makes a broad assertion of

vindictiveness, but has not demonstrated actual vindictiveness.

{¶16} While Appellant asserts the prosecutor committed misconduct in the grand

jury proceedings, the proceedings before the grand jury are not a part of the record before

this Court on appeal. “When portions of the transcript necessary for resolution of

assigned errors are omitted from the record, the reviewing court has nothing to pass upon

and thus, as to those assigned errors, the court has no choice but to presume the validity of the lower court's proceedings, and affirm.” Knapp v. Edwards Laboratories, 61 Ohio

St.2d 197, 199 (1980). Because we do not have a record of the grand jury proceedings,

we must presume validity in the proceedings before the grand jury and affirm.

{¶17} The second assignment of error is overruled.

III.

{¶18} In his third assignment of error, Appellant argues the evidence was

insufficient to convict him of extortion and intimidation. We disagree.

{¶19} An appellate court's function when reviewing the sufficiency of the evidence

is to determine 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. Jenks, 61 Ohio St. 3d 259, paragraph two of

the syllabus (1991).

{¶20} Appellant was convicted of two counts of extortion in violation of R.C.

2905.11(B)(4):

(B) No person, with purpose to obtain any valuable thing or valuable

benefit or to induce another to do an unlawful act, shall do any of the

following:

(4) Utter or threaten any calumny against any person[.]

{¶21} Appellant argues the State failed to present evidence his purpose in sending

the letter to the judge was to obtain any valuable thing or valuable benefit. Appellant cites

this Court to State v. Stone, 1992 WL 56778 (4th Dist. March 26, 1992), in which the court held, “We believe the R.C. 2905.11 extortion statute phrase ‘valuable thing or

valuable benefit’ must be interpreted to include only things or benefits that have a

monetary value; otherwise, there would be no distinction between the extortion and

coercion statutes.” Appellant argues there is no evidence his purpose in threatening to

release the video to television stations was to obtain anything which has monetary value.

{¶22} The Stone court reasoned without a requirement the valuable thing or

valuable benefit have monetary value, the crime of extortion would be indistinguishable

from the crime of coercion. However, subsequent to Stone, other appellate districts have

expanded the definition of “valuable thing or valuable benefit” to include items which do

not have a monetary value. In considering the issue of the distinction between extortion

and coercion, the Second District held:

Similarly, under Ohio law, while coercive conduct is necessary for

extortion, it is not sufficient. Although the same coercive conduct can

underlie both offenses, the purpose and effect of the conduct differs. The

language of these two offenses bears this out. On the one hand, coercion

requires proof of a “purpose to coerce another into taking or refraining from

action concerning which the other person has a legal freedom of choice.”

R.C. 2905.12(A). The effect is to deprive another of the freedom to act.

Extortion, on the other hand, requires proof of a “purpose to obtain any

valuable thing or valuable benefit or to induce another to do an unlawful

act.” R.C. 2905.11(A). The effect of extortion is to coerce another in order

to obtain something to which the extorter has no right. The important distinction, then, is extortion's additional evidentiary requirement of an intent

to obtain something. It matters not that the thing sought is intangible.

{¶23} State v. Cunningham, 2008-Ohio-5164, ¶ 17 (2nd Dist.).

{¶24} Similarly, in State v. Akers, 2000 WL 706795 (6th Dist. June 2, 2000), the

court held coercing a person to post bail results in a valuable benefit, specifically release

from jail, and therefore Akers’ conviction for extortion was based on sufficient evidence.

In State v. Lutz, 2003-Ohio-275, ¶ 66 (8th Dist.), the court found a filing intended to

motivate the illegal release of the defendant constituted a valuable benefit. The court in

State v. Kopras, 2018-Ohio-2774, ¶ 41, found immediate access to the defendant’s child,

which he had no right to, was a valuable benefit.

{¶25} We agree with the majority of case law in Ohio which concludes the valuable

benefit need not be something of monetary value. The evidence in this case, including

Appellant’s own testimony, demonstrated Appellant’s purpose in sending the judge the

letter was to secure the judge’s recusal from the case because Appellant believed the

judge was biased against him. There was evidence the judge had denied numerous

postconviction motions filed by Appellant, including a motion for early release. From the

evidence presented, the jury could conclude the “valuable benefit” Appellant sought by

sending the letter was to secure the judge’s recusal from the case and a transfer to

another county, in order to be assigned a judge more favorable to him. His purpose was

the same with regards to both the judge and the judge’s wife – to secure the recusal of

the judge in order to obtain early release from jail. We find the evidence was sufficient to

support Appellant’s convictions of extortion. {¶26} Appellant was also convicted of one count of intimidation in violation of R.C.

2921.03(A):

No person, knowingly and by force, by unlawful threat of harm to any

person or property, or by filing, recording, or otherwise using a materially

false or fraudulent writing with malicious purpose, in bad faith, or in a wanton

or reckless manner, shall attempt to influence, intimidate, or hinder a public

servant, a party official, or an attorney or witness involved in a civil action or

proceeding in the discharge of the person’s the duties of the public servant,

party official, attorney, or witness.

{¶27} Appellant argues he did not make any threat of force upon the judge, and

therefore the evidence was insufficient to convict him of intimidation.

{¶28} The Ohio Supreme Court has recognized three separate and distinct ways

in which it is illegal to exert improper influence:

R.C. 2921.03 makes it unlawful for a person to knowingly take certain

actions to influence, intimidate, or hinder a witness, a party official, or a

public servant in the discharge of a duty. R.C. 2921.03(A). The ways in

which it is illegal to exert such improper influence are by knowingly (1) using

force, (2) unlawfully threatening harm against any person or property, or (3)

using a materially false or fraudulent writing in any way with malice, bad

faith, wantonness, or recklessness. Id. Thus, there are specified actions that are criminalized when committed against a specified set of people.

However, there are no such limitations as to the identity or status of the

person who might commit the offense of intimidation.

{¶29} State v. Steele, 2013-Ohio-2470, ¶ 19.

{¶30} The State in the instant case pursued a theory Appellant used a materially

false or fraudulent writing with malice, bad faith, wantonness, or recklessness. The State

was not required therefore to prove Appellant used force, as the statute sets forth the

manner in which it is illegal to exert improper influence in the disjunctive rather than the

conjunctive. The judge’s wife testified the sexual activity Appellant described in his letter

never occurred, and she testified she had never seen Appellant before trial. From this

testimony, the jury could find Appellant’s letter was materially false or fraudulent, and he

used it to obtain the judge’s recusal from his case with malice, bad faith, wantonness, or

recklessness. We find the judgment is sufficient to support Appellant’s conviction of

intimidation.

{¶31} The third assignment of error is overruled.

IV.

{¶32} In his fourth assignment of error, Appellant argues the trial court erred in

failing to instruct the jury on the crime of coercion, as a lesser-included offense of

extortion. We disagree.

{¶33} In the body of his argument, Appellant restates his argument the phrase

“valuable thing or valuable benefit” in the statutory definition of the crime of extortion refers solely to thing with monetary or pecuniary value. For the reasons set forth in our

discussion of Appellant’s third assignment of error, we find this argument without merit.

{¶34} Appellant did not request a jury instruction on coercion as a lesser-included

offense of extortion, and therefore, we must find plain error in order to reverse. To

establish plain error, Appellant must show an error occurred, the error was obvious, and

there is a reasonable probability the error resulted in prejudice, meaning the error affected

the outcome of the trial. State v. McAlpin, 2022-Ohio-1567, ¶ 66, citing State v. Rogers,

2015-Ohio-2459, ¶ 22. Even though an offense may be statutorily defined as a lesser-

included offense of another, a charge on such lesser-included offense is required 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. State v. Wine, 2014-

Ohio-3948, ¶ 21

{¶35} Appellant was charged with extortion in violation of R.C. 2905.11(B)(4):

(B) No person, with purpose to obtain any valuable thing or valuable

benefit or to induce another to do an unlawful act, shall do any of the

{¶36} Coercion is defined by R.C. 2905.12: No person, with purpose to coerce another into taking or refraining

from action concerning which the other person has a legal freedom of

choice, shall do any of the following:

(2) Utter or threaten any calumny against any person[.]

{¶37} The distinction between the crime of extortion and the crime of coercion as

applicable to the instant case is extortion requires proof of purpose to obtain any valuable

thing or valuable benefit, while coercion does not. Although Appellant has argued as a

legal issue the “valuable thing or valuable benefit” must be monetary in nature, Appellant

admitted to writing the letter in order to get the judge to recuse himself from his case

because he believed the judge to be biased against him. In defense of the charge of

extortion, Appellant maintained throughout trial he did not utter or threaten calumny

against the judge and his wife. “Calumny” is defined as a “misrepresentation intended to

harm another's reputation; the act of uttering false charges or misrepresentations

maliciously calculated to harm another's reputation.” State v. Zylko, 2008-Ohio-3032, ¶

42 (8th Dist.). Appellant’s defense at trial was he did not make a false representation

because he did in fact engage in sexual relations with the judge’s wife. Appellant’s

defense at trial was an attempt to disprove an element of both crimes, and not to disprove

the element required to prove the greater, but not the lesser, offense. Therefore, based

on the evidence presented by Appellant, he has not demonstrated a reasonable

probability the jury would have acquitted him of extortion while convicting him of coercion.

We find Appellant has not demonstrated plain error.

{¶38} The fourth assignment of error is overruled. V., VI.

{¶39} In his fifth and sixth assignments of error Appellant argues his appointed

counsel was ineffective by failing to subpoena witnesses requested by Appellant and

failing to retrieve the video of Appellant and the judge’s wife engaging in sexual activity.

He argues because of counsel’s ineffectiveness, he was required to proceed pro se. We

disagree.

{¶40} A properly licensed attorney is presumed competent. State v. Hamblin, 37

Ohio St.3d 153 (1988). Therefore, in order to prevail on a claim of ineffective assistance

of counsel, Appellant must show counsel's performance fell below an objective standard

of reasonable representation and but for counsel’s error, the result of the proceedings

would have been different. Strickland v. Washington, 466 U.S. 668 (1984); State v.

Bradley, 42 Ohio St.3d 136, (1989). In other words, Appellant must show counsel’s

conduct so undermined the proper functioning of the adversarial process that the trial

cannot be relied upon as having produced a just result. Id.

{¶41} Appellant has not demonstrated a reasonable probability of a change in the

outcome but for counsel’s alleged ineffective performance. Appellant did not present any

evidence other than his own testimony; therefore, the record does not reflect what, if any,

exculpatory evidence existed. The detective who investigated the instant case testified

he attempted to contact several people regarding the existence of the video, but was

unable to find anyone who had seen the alleged video. The record does not support

Appellant’s claim witnesses were available to testify in his defense, and does not support

his claim a video of Appellant and the judge’s wife engaging in sexual activity existed.

We find Appellant has not demonstrated appointed counsel was ineffective. {¶42} The fifth and sixth assignments of error are overruled.

VII.

{¶43} In his seventh and final assignment of error, Appellant argues the trial court

erred in denying his motion for an extension of time in which to file pretrial motions. We

{¶44} Appellant argues on the first day of trial, the trial court denied his motion for

an extension of time in which to file pretrial motions. The record does not support

Appellant’s claim. Prior to trial, Appellant orally requested reconsideration of his pretrial

motions which the trial court had denied on the basis Appellant was not entitled to hybrid

representation, specifically, a motion to dismiss for vindictive and selective prosecution,

a motion to dismiss for speedy trial, and a motion to dismiss “for Rule C.” Tr. 111.

However, Appellant did not at this point request an extension of time to file further pretrial

motions. “If an argument exists that can support [an] assignment of error, it is not this

court's duty to root it out.” State v. Colston, 2020-Ohio-3879, ¶ 58 (5th Dist.). We find

Appellant has not demonstrated error in the record. {¶45} The seventh assignment of error is overruled.

{¶46} The judgment of the Richland County Common Pleas Court is affirmed.

By: Hoffman, J. Baldwin, P.J. and Popham, J. concur