State v. Chirco

2023 Ohio 22

• Court: Ohio Court of Appeals
• Decided: January 6, 2023
• Docket: 29399 & 29400
• Status: Published

Opinion

[Cite as State v. Chirco, 2023-Ohio-22.]

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

STATE OF OHIO : : Appellee : C.A. Nos. 29399; 29400 : v. : Trial Court Case Nos. 2021 CR 02927; : 2021 CR 03506 PAUL CHIRCO : : (Criminal Appeal from Common Pleas Appellant : Court) :

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OPINION

Rendered on January 6, 2023

MATHIAS H. HECK, JR., by RICKY L. MURRAY, Attorney for Appellee

JEFFREY T. GRAMZA, Attorney for Appellant

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LEWIS, J. -2-

{¶ 1} Defendant-Appellant Paul Chirco appeals from his convictions for inducing

panic, making false alarms, and retaliation. Chirco contends that his conviction for

retaliation should be reversed, because he was prejudiced when the trial court improperly

allowed a witness to testify regarding Chirco’s state of mind when he left voicemails

threatening a municipal court judge. For the following reasons, we affirm the judgments

of the trial court.

I. Facts and Course of Proceedings

{¶ 2} In November 2019, Chirco was admitted to the mental health docket of the

Dayton Municipal Court. In March 2021, a bench warrant was issued against Chirco due

to his failure to stay in contact with his probation officer and case manager. Chirco was

arrested, his bond was revoked, and he spent 22 days in jail. In August 2021, Chirco

was investigated for making bomb threats relating to the Regional Transit Authority (RTA)

bus hub in downtown Dayton and for leaving threatening and racially-charged voicemails

for Dayton Municipal Court Judge Carl Henderson.

{¶ 3} On September 7, 2021, in Montgomery County C.P No. 2021-CR-2927, a

Montgomery County grand jury indicted Chirco on one count of inducing panic and one

count of making false alarms. On November 12, 2021, in Montgomery County C.P. No.

2021-CR-3506, a Montgomery County grand jury indicted Chirco on one count of

retaliation, a third-degree felony in violation of R.C. 2921.05(A). The two cases were

tried together in a bench trial on January 31, 2022.

{¶ 4} During the bench trial, the State presented four witnesses. Dayton -3-

Municipal Court Judge Carl Henderson testified first for the State. Judge Henderson is

the presiding judge of the mental health court docket. As part of his duties, he has at

least monthly contact with each participant in the docket. Id. at 9, 11-12. Chirco was a

participant in the mental health docket due to past convictions for making false alarms

and domestic violence. Id. at 15. Judge Henderson described Chirco’s participation in

the program as starting off “a little rocky,” then “pretty good,” and then “he just fell off the

rails.” Id. at 16. In March 2021, a bench warrant was issued due to Chirco’s failure to

stay in communication with his case manager and probation officer. Id. at 17. Chirco’s

probation was revoked, and he spent 22 days in jail. Id. at 19.

{¶ 5} Chirco called Judge Henderson’s office number and left several voicemail

messages between April 2 and August 7, 2021. Chirco left the first voicemail message

a few days before he was arrested on the bench warrant and left the second one on May

29, 2021, after he was released from jail. Id. at 22-28. Judge Henderson testified that

it sounded like Chirco on the voicemails. When asked why he believed Chirco left the

voicemails, Judge Henderson testified, “He was upset that he went to jail.” Id. at 28-29.

{¶ 6} Andrea Burns testified that she had worked as a probation officer for 14

years, including two years with the mental health docket. Id. at 32-33. Chirco was

assigned to her, and she spoke with him many times by phone. She characterized his

voice as distinct and was able to confirm it was his voice in the voicemails that were left

for Judge Henderson. Id. at 37-38, 42-45.

{¶ 7} Police Officer Richard Thimmes also testified that, at around 7:00 p.m. on

August 28, 2021, he was part of a 2-man police crew dispatched to investigate a bomb -4-

threat at the RTA bus hub on South Main Street. Id. at 50-51. After helping to shut

down two streets and evacuate people from the area, Officer Thimmes went to Chirco’s

residence, because Chirco’s phone number had been identified as the number that called

in the bomb threat. While Officer Thimmes was questioning Chirco, the dispatch called

the phone number from which the bomb threat originated and Chirco’s phone rang in

response to dispatch’s call. Id. at 56-59.

{¶ 8} Detective Bradley Meeker, who had worked for over four years on the joint

terrorism task force with the Dayton Police Department, was assigned to investigate the

threats made in voicemails left for Judge Henderson. Id. at 61. Based on a review of

the contents of Chirco’s cell phone, along with the call logs obtained from Chirco’s cellular

provider, Detective Meeker determined that all the voicemails to Judge Henderson lined

up with calls placed from Chirco’s cell phone. Id. at 79-92, 96.

{¶ 9} At the conclusion of the bench trial, the trial court found Chirco guilty on all

three counts. The trial court sentenced Chirco to one year in prison for inducing panic,

one year in prison for making false alarms, and two years in prison for retaliation. All of

the sentences were made concurrent, resulting in a total prison term of two years. Chirco

filed a timely notice of appeal.

II. Chirco Failed to Establish Plain Error or Prejudice in The Trial Court’s Decision

to Allow Judge Henderson to Testify as to Why He Believed Chirco Threatened

Him

{¶ 10} Chirco’s sole assignment of error states: -5-

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

OVERRULED APPELLANT’S OBJECTION TO TESTIMONY THAT WAS

BASED ON SPECULATION AND NOT FROM THE PERSONAL

KNOWLEDGE OF THE WITNESS.

{¶ 11} Although he was convicted of three offenses, Chirco only challenges his

conviction for retaliation under R.C. 2921.05(A). That statute provides:

(A) No person, purposely and by force or by unlawful threat of harm

to any person or property, shall retaliate against a public servant, a party

official, or an attorney or witness who was involved in a civil or criminal

action or proceeding because the public servant, party official, attorney, or

witness discharged the duties of the public servant, party official, attorney,

or witness.

{¶ 12} Chirco’s retaliation charge resulted from a series of voicemails he left on

Judge Henderson’s office number. During several of these short messages, Chirco

identified himself as Adolf Hitler, James Earl Ray, or Rudolf Hess and then yelled “Die!”

Chirco also left a voicemail that said “I’m out now. You piece of sh**. Watch your back.”

The final voicemail, which was left on August 7, 2021, stated “I’m gonna kill you,

motherf***er.”

{¶ 13} In his assignment of error, Chirco contends that the trial court improperly

relied on inadmissible testimony. According to Chirco, the trial court should not have

admitted the testimony of Judge Henderson regarding Chirco’s intent in leaving the

voicemails. The challenged testimony is as follows: -6-

Q: And upon hearing these voicemails, did you know who the caller was

at the time?

A: It sounded like Mr. Chirco.

Q: Okay. And did you inform the police of that at the time when you

first notified them?

A: Yes.

Q: Okay. And did you have any knowledge of why he was leaving

these voicemails to you?

MR. BRENNER: Objection, Your Honor. Speculation.

THE COURT: I’m going to overrule that. I can – I believe the

question do you have any idea, he can answer that yes or no.

BY MR. MCPHERRON:

Q: And why do you believe he was leaving these voicemails?

A: He was upset that he went to jail.

Trial Transcript, p. 28-29.

{¶ 14} Chirco contends that the statement “He was upset that he went to jail”

violated Evid.R. 602’s requirement that a witness must testify only to matters of which the

witness has personal knowledge. The State counters that “Judge Henderson had

substantial firsthand knowledge to allow him to perceive Chirco’s level of frustration and

anger with Judge Henderson.” State’s Appellate Brief, p. 6.

{¶ 15} Chirco contends that his attorney objected to the testimony at trial. But a -7-

close look at the testimony reveals that while defense counsel objected to the initial

question involving whether Judge Henderson knew why Chirco had left the voicemails,

he failed to object to the follow-up question asked by counsel for the State that led to the

testimony cited by Chirco in this appeal. Therefore, Chirco has waived all but plain error.

State v. Childs, 14 Ohio St.2d 56, 236 N.E.2d 545 (1968), paragraph three of the syllabus.

{¶ 16} An alleged error is plain error only if the error is “obvious,” State v. Barnes,

94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002), and “but for the error, the outcome of the

trial clearly would have been otherwise.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d

804 (1978), paragraph two of the syllabus. Notice of plain error “is to be taken with the

utmost caution, under exceptional circumstances and only to prevent a manifest

miscarriage of justice.” Id. at paragraph three of the syllabus. The overwhelming

evidence at trial, including the testimony of the police officers and the voicemails left by

Chirco, established all the required elements of the retaliation offense. Judge

Henderson’s testimony did not go beyond what a rational trier of fact would infer from the

voicemails left by Chirco. Especially damning was the voicemail left by Chirco when he

was released from jail, in which he stated “I’m out now. You piece of sh**. Watch your

back.”

{¶ 17} Further, we are in no way convinced that the trial court even considered

Judge Henderson’s one line of testimony regarding Chirco’s mental state when finding

Chirco guilty of retaliation. Rather, the trial court stated: “I think that the mental states of

the Defendant Paul Chirco are established by the -- by inference drawn from the direct

evidence in this case.” Trial Transcript, p. 101. Contrary to Chirco’s assertions, the trial -8-

court did not mention Judge Henderson’s testimony regarding why he believed Chirco left

the voicemails. “[I]n reviewing a bench trial, an appellate court presumes that a trial court

considered nothing but relevant and competent evidence in reaching its verdict. The

presumption may be overcome only by an affirmative showing to the contrary by the

appellant.” State v. Wiles, 59 Ohio St.3d 71, 86, 571 N.E.2d 97 (1991), citing State v.

Post, 32 Ohio St.3d 380, 384, 513 N.E.2d 754 (1987).

{¶ 18} The evidence that the voicemails originated from Chirco’s phone number,

along with the identification of Chirco’s voice on the voicemails, the timing of the

voicemails, the content of the voicemails, and the fact that Judge Henderson issued the

order that resulted in Chirco’s going to jail was more than sufficient to establish the

elements of retaliation beyond a reasonable doubt.

{¶ 19} Chirco has failed to establish plain error or prejudice from the admission of

Judge Henderson’s one line of testimony as to why he believed Chirco left the voicemails.

The sole assignment of error is overruled.

III. Conclusion

{¶ 20} Having overruled the sole assignment of error, the judgments of the trial

court are affirmed.

TUCKER, P.J. and WELBAUM, J., concur. -9-