State v. Deveny

2017 Ohio 560

• Court: Ohio Court of Appeals
• Decided: February 17, 2017
• Docket: 2016-CA-7
• Status: Published

Opinion

[Cite as State v. Deveny, 2017-Ohio-560.]

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

STATE OF OHIO : : Plaintiff-Appellee : C.A. CASE NO. 2016-CA-7 : v. : T.C. NO. 15CRB1209 : MARCIA L. DEVENY : (Criminal Appeal from : Municipal Court) Defendant-Appellant : :

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OPINION

Rendered on the ___17th ___ day of _____February_____, 2017.

ANDREW JOHNSTON, Atty. Reg. No. 0088008, 215 W. Water Street, P. O. Box 310, Troy, Ohio 45373 Attorney for Plaintiff-Appellee

C. RALPH WILCOXSON, II, Atty. Reg. No. 0061974, 211 Kenbrook Drive, Suite #5, Vandalia, Ohio 45377 Attorney for Defendant-Appellant

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FROELICH, J.

{¶ 1} Marcia Deveny appeals from a judgment of the Municipal Court of Miami

County, which found her guilty of domestic violence. She was sentenced to 30 days in

jail, all of which was suspended on the condition that she have no contact with the victim,

and she was fined $100. At Deveny’s request, her sentence was stayed pending this -2-

appeal.

{¶ 2} For the following reasons, the judgment of the trial court will be affirmed.

I. Procedural History

{¶ 3} On Sunday, April 19, 2015, Deveny and her husband, Buff Anspaugh, had

decided to separate and to file for divorce. Anspaugh went to the house that day to collect

his belongings, and a confrontation ensued during which Deveny allegedly threatened to

shoot Anspaugh if he went into their barn to get some horses. The dispute was diffused

by the arrival of two sheriff’s deputies, and Anspaugh left with the horses.

{¶ 4} On April 20, 2015, Anspaugh filed a complaint alleging that Deveny had

committed domestic violence in violation of R.C. 2919.25(C), a misdemeanor of the fourth

degree. Deveny pled not guilty and had a bench trial on September 1, 2015. She was

found guilty and sentenced as described above.

II. Sufficiency and Weight of the Evidence

{¶ 5} Deveny raises two assignments of error on appeal. In her first assignment,

Deveny contends that the trial court erred in denying her Crim.R. 29(A) motion for

acquittal at the close of the State’s case.1 She contends that Anspaugh’s testimony and

actions failed to demonstrate that he was in fear of imminent harm. In her second

assignment of error, she argues that her conviction was against the manifest weight of

the evidence because, even if her threat were believed, “the conditions of the threat were

1 At the close of the State’s case, the trial court “reserve[d] ruling” on the Crim.R. 29 motion, which is not permitted under Crim.R. 29(A). However, the motion was not renewed at the close of all the evidence, the court did not address it at any time, and, for purposes of appeal, Deveny frames the issue as if the motion were denied. In certain circumstances, a reservation of a ruling at the close of the State’s case is an implied denial. State v. Hubbard, 8th Dist. Cuyahoga No. 83389, 2004-Ohio-5204, ¶ 10. Regardless, we will address this argument as if the motion had been denied. -3-

never achieved,” i.e., Anspaugh did not try to go into the barn.

{¶ 6} When reviewing the denial of a Crim.R. 29(A) motion, an appellate court

applies the same standard as is used to review a claim based on the sufficiency of the

evidence. “A sufficiency of the evidence argument disputes whether the State has

presented adequate evidence on each element of the offense to allow the case to go to

the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery

No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678

N.E.2d 541 (1997). The relevant inquiry is whether any rational finder of fact, after

viewing the evidence in a light most favorable to the State, could have found the essential

elements of the crime proven beyond a reasonable doubt. State v. Dennis, 79 Ohio

St.3d 421, 430, 683 N.E.2d 1096 (1997). A guilty verdict will not be disturbed on appeal

unless “reasonable minds could not reach the conclusion reached by the trier-of-fact.”

Id.

{¶ 7} When reviewing an argument challenging the weight of the evidence, an

appellate court reviews the entire record, weighs the evidence and all reasonable

inferences, considers the credibility of witnesses, and determines whether, in resolving

conflicts in the evidence, the finder 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. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin,

20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

{¶ 8} The complaint alleged that Deveny had violated R.C. 2919.25(C), which

states that “[n]o person, by threat of force, shall knowingly cause a family or household

member to believe that the offender will cause imminent physical harm to the family or -4-

household member.” Deveny does not dispute that she and Anspaugh were family or

household members.

{¶ 9} The State’s evidence at trial was as follows:

{¶ 10} According to Anspaugh, he had lived with Deveny until the morning of

Sunday, April 19, 2015, but he and Deveny had decided to divorce; on the morning of

April 19, they agreed by phone that Anspaugh would come to their property in the

afternoon to collect his belongings. Anspaugh brought several friends and several

vehicles with him to collect his personal property, which included three horses. The men

arrived at the marital home between 2 and 3 o’clock. The property consisted of several

buildings, and numerous other people were also on the property that afternoon,

particularly in the vicinity of a barn and arena.

{¶ 11} At first, the collection of Anspaugh’s belongings from several parts of the

property went fairly smoothly. Deveny did call the sheriff’s department around 2:30,

apparently in anticipation that trouble might develop, but when Deputy Travis Boggs

arrived, he did not find any problems. Boggs informed Deveny and Anspaugh that the

sheriff’s department did not provide peace calls (i.e., he could not remain there to oversee

the process and keep the peace), but they could call him to come back if they experienced

any problems.

{¶ 12} By approximately 5:00, Anspaugh had collected most of his belongings; all

that remained were the three horses, which were in the barn. According to Anspaugh,

the horses belonged to him, he and Deveny had discussed their removal earlier in the

day, and he had brought a horse trailer for that purpose. However, when the horses

were all that remained to be loaded, Deveny refused to get them and said that she did -5-

not want Anspaugh in the barn. Anspaugh and one of his friends, Terry McKinney,

testified that Deveny threated to shoot Anspaugh if he (Anspaugh) went inside the barn,

and yelled for her friend Arlene to “get her [Deveny’s] gun” because she (Deveny) was

going to shoot Anspaugh. Anspaugh and McKinney testified that they believed Deveny

was not joking when she made these statements. Anspaugh knew that a rifle and a .357

revolver were in the house; a third gun had been loaded into the McKinney’s truck earlier

in the afternoon.

{¶ 13} Anspaugh testified that he believed “without a doubt” that he would be shot

if he tried to go into the barn, so he did not. He also did not call the sheriff’s department,

but Deveny did, and Deputy Boggs returned to the house.

{¶ 14} Deputy Boggs testified about his two visits to the Deveny-Anspaugh house

on the afternoon of April 19, 2015. He stated that everyone appeared to be getting along

at the time of his first visit, but that Deveny and Anspaugh were arguing about the horses

when he arrived the second time. He spoke to Deveny first, and then to Anspaugh,

informing each of them that the ownership of the horses was a “civil matter” which he

could not resolve. Anspaugh reported that Deveny had threatened him, and Deveny

admitted to Boggs that she had threatened to shoot Anspaugh if he went into the barn,

and she did not assert that she had been joking. Boggs did not recall questioning

Deveny about whether she had yelled to her friend to bring a gun out of the house.

Boggs and another deputy also talked with numerous other people who were at the

property, some of whom had witnessed the “very loud” argument between Deveny and

Anspaugh.

{¶ 15} Before the deputies’ departure, Deveny permitted Anspaugh to leave with -6-

his horses that afternoon. Anspaugh indicated to Boggs that he wanted to pursue

charges against Deveny for the threat.

{¶ 16} Deveny and several other witnesses testified for the defense.

{¶ 17} Deveny testified that she had not been expecting Anspaugh to come for

his personal property on Sunday, April 19; she stated that the barn was full of boarders

and people taking lessons that day, and that they had agreed he would come on Monday.

Deveny admitted she had told the deputies on the day of the incident that she was not

sure if she had threatened Anspaugh, but she testified at trial that she was sure she had

not done so or asked anyone to bring her a gun. Deveny told Anspaugh he could not

take the horses because she needed them for her businesses. According to Deveny,

she agreed to let Anspaugh take the horses with the understanding that he would not

press charges against her, but he pressed charges anyway.

{¶ 18} Several boarders or parents of students taking riding lessons from Deveny

testified that they had been present on April 19 and had witnessed or overheard parts of

the argument between Deveny and Anspaugh. These witnesses testified that they heard

yelling and screaming by both parties, but had not heard Deveny threaten Anspaugh.

They also testified that they had not been questioned by the sheriff’s deputies about what

they had witnessed. One of these witnesses testified that Anspaugh was “definitely the

aggressor” in the argument with Deveny.

{¶ 19} In its decision and entry, the trial court found that the State’s witnesses

were credible and that the defense witnesses, “with the exception of the Defendant

herself, were not.” With respect to Deveny’s testimony, the court focused on her

admission that she did not recall whether she had threatened Anspaugh with a gun. The -7-

court found that Deveny had threatened to shoot Anspaugh, that Anspaugh had believed

that Deveny would cause him imminent physical harm, and that Anspaugh was a family

or household member of Deveny. Thus, it found Deveny guilty of domestic violence.

{¶ 20} The testimony of Anspaugh and McKinney, if believed, provided sufficient

evidence to support each element of domestic violence. Thus, Deveny’s conviction was

supported by sufficient evidence.

{¶ 21} Deveny argues that her conviction was against the manifest weight of the

evidence because her threat was “conditional”; in other words, she implies that there was

no imminent threat to Anspaugh, as required for a domestic violence conviction. Courts

have found that the danger posed by a threat is not imminent where the person making

the threat has no means of fulfilling the threat at the time it is made. For example, where

a threat specifically includes the use of a gun, but no gun is present and there is no other

violence, a belief that physical harm was imminent might not be reasonable. However,

a general threat, i.e., one not tied to a specific means, might reasonably induce fear of

imminent harm. See, e.g., City of Cincinnati v. Baarlaer, 115 Ohio App.3d 521, 527, 685

N.E.2d 836, 840 (1st Dist.1996), distinguishing State v. Collie, 108 Ohio App.3d 580, 671

N.E.2d 338 (1st Dist. 1996). Moreover, a threat to cause physical harm need not be

verbalized; it may be implied by the offender’s actions. State v. El-Hardan, 2d Dist.

Montgomery No. 24293, 2011-Ohio-4453, ¶ 46, citing State v. Terzo, 12th Dist. Butler No.

CA2002-08-194, 2003-Ohio-5983, ¶ 18.

{¶ 22} The State’s evidence established that Deveny threatened to shoot

Anspaugh and that there were guns in the vicinity, if not immediately at hand. Moreover,

the State’s evidence showed that, in addition to threatening Anspaugh directly, Deveny -8-

called out to a friend to bring her (Deveny) a gun, because she might need to shoot

Anspaugh if he went to the barn. Under these circumstances, a trier of fact could

reasonably find that Deveny’s threat and other actions caused Anspaugh to believe he

was in imminent danger, notwithstanding that he could arguably avoid the danger by

complying with Deveny’s demands. Based on the evidence presented, the trial court did

not clearly lose its way or create a manifest miscarriage of justice in finding Deveny guilty,

and her conviction was not against the manifest weight of the evidence.

{¶ 23} The assignments of error are overruled.

III. Conclusion

{¶ 24} The trial court’s judgment will be affirmed.

HALL, P.J. and WELBAUM, J., concur.

Copies mailed to:

Andrew Johnston C. Ralph Wilcoxson, II Hon. Gary A. Nasal