[Cite as State v. Fisher, 2021-Ohio-3919.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-200461 C-200463 Plaintiff-Appellee, : C-200464 C-200465 vs. : TRIAL NOS. 20CRB-20651 A-B 20CRB-20654 JAMES FISHER, : 20CRB-20697
Defendant-Appellant. : O P I N I O N.
Criminal Appeals From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded
Date of Judgment Entry on Appeal: November 3, 2021
Andrew W. Garth, City Solicitor, William T. Horsley, Chief Prosecuting Attorney, and Susan M. Zurface, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and David Hoffmann, Assistant Public Defender, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} After defendant-appellant James Fisher sent a flurry of threating messages to
Star Higgins, his ex-girlfriend, police arrested him on her street with a firearm concealed in
his vehicle. The trial court convicted Mr. Fisher of menacing by stalking,
telecommunications harassment, aggravated menacing, and carrying a concealed weapon.
Now Mr. Fisher appeals, raising an array of constitutional issues, challenging the weight and
sufficiency of the evidence, and protesting the forfeiture of his firearm. We sustain Mr.
Fisher’s challenge to the forfeiture of his firearm, but otherwise affirm the trial court’s
judgment.
I.
{¶2} Mr. Fisher and Mrs. Higgins’s relationship deteriorated, leading to their
separation shortly after the birth of their son approximately nine years ago. Since that
separation, Mr. Fisher vanished from his son’s life. Although he contacted Mrs. Higgins
every couple of years to inquire about the child, he made no effort to establish a relationship
with his son.
{¶3} Desiring to chart a new course, in October 2020, he reached out to Mrs.
Higgins, asking about his son and expressing a desire to become involved in his life. But
when Mr. Fisher’s communications strayed to other topics, Mrs. Higgins drew a line in the
sand, forbidding him from contacting her, except about their son. In response, Mr. Fisher
lashed out, chastising Mrs. Higgins and criticizing her marriage.
{¶4} Two days later, with Mrs. Higgins staying silent, Mr. Fisher erupted. From
October 25 to October 27, Mr. Fisher bombarded Mrs. Higgins with a tirade of threatening
text messages and phone calls. The communications deplored Mrs. Higgins related to the
custody dispute over their son. In this volley of texts, among other things, Mr. Fisher
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threatened to cut a tattoo off her husband’s arm that was dedicated to Mr. Fisher’s son, he
sent a picture of him pointing a gun at the camera, and he threatened to kill Mrs. Higgins
and her husband. In addition, he threatened to kill Judge Fanon Rucker, a former Hamilton
County Municipal Court judge, because Mr. Fisher mistakenly believed he was involved in
the custody dispute. In all, Mr. Fisher sent seventy pages’ worth of text messages and made
at least four calls to Mrs. Higgins from October 23 to 27. During this period, Mrs. Higgins
also discovered a piece of paper left on the windshield of her car that ostensibly ordered
Mrs. Higgins’s husband to cover up his tattoo.
{¶5} Dismayed by this turn of events, Mrs. Higgins eventually called the police.
The police filed warrants for Mr. Fisher’s arrest and patrolled the area looking for him.
Shortly after midnight, an officer arrested him on Mrs. Higgins’s street. At the time of his
arrest, Mr. Fisher admitted possessing a firearm in his car, which the officer found
concealed beneath an article of clothing.
{¶6} Mr. Fisher was charged with menacing by stalking, telecommunications
harassment, aggravated menacing, and carrying a concealed weapon. At a pretrial hearing,
Mr. Fisher’s trial counsel, Joshua Thompson, revealed that he had a connection with Judge
Rucker, the victim of the aggravated menacing charge, because he had contributed to Judge
Rucker’s campaign for prosecuting attorney. He appropriately disclosed the connection to
Mr. Fisher, and Mr. Fisher did not protest or request additional information. At a
subsequent pretrial hearing several weeks later, however, Mr. Fisher had a change of heart,
requesting a continuance to obtain private counsel based on concerns about counsel’s
potential conflict of interest. The trial court refused his request, noting that Mr. Fisher
could have raised his concern at two intervening pretrial hearings. Without exploring the
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nature of the potential conflict, the trial court conveyed its
“absolute confidence” that Mr. Thompson could ethically represent Mr. Fisher.
{¶7} The case proceeded to a bench trial, with the court finding Mr. Fisher guilty
on all four charges. After Mr. Fisher underwent a psychological evaluation, the trial court
sentenced him to an aggregate sentence of 18 months. On appeal, Mr. Fisher argues that
the convictions infringed on his right to conflict-free counsel, contravened his right to a trial
by jury, were unsupported by the weight and sufficiency of the evidence, deprived him of his
right to effective assistance of counsel, and violated Ohio law on the forfeiture of property.
II.
{¶8} Mr. Fisher’s first assignment of error challenges the alleged deprivation of his
Sixth Amendment right to conflict-free counsel. He maintains that (1) the trial court failed
to conduct an adequate inquiry to ascertain whether a conflict of interest existed, and (2)
the record demonstrates the presence of an actual conflict of interest warranting reversal of
the convictions.
A.
{¶9} We agree with Mr. Fisher that the trial court initially did not conduct an
adequate inquiry into a potential conflict of interest, a point underscored by an intervening
Supreme Court opinion. “A trial court’s affirmative duty to inquire [into a potential conflict
of interest] arises when the trial court knows or has reason to know that a possible conflict
of interest exists or when a defendant objects.” State v. Williams, Slip Opinion No. 2021-
Ohio-3152, ¶ 6. A duty to inquire arose when Mr. Fisher sought to substitute Mr. Thompson
for private counsel because of his contribution to the victim’s campaign. See id. at ¶ 17 (if
the record reveals “the possibility of incompatible interests,” it triggers the trial court’s duty
to inquire).
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{¶10} Although the trial court discussed this matter at length on the record, it did
not inquire of defense counsel as to the nature and amounts of any campaign involvement,
or any other indicia that might suggest a close relationship with the victim. Without such an
inquiry, the court offered no findings on the ability of Mr. Thompson to zealously represent
Mr. Fisher notwithstanding his contribution, nor are any pertinent facts along these lines
apparent in the transcript. See State v. Feemorlu, 2015-Ohio-4528, 46 N.E.3d 1108, ¶ 16
(3d Dist.) (trial court’s inquiry was inadequate where “trial court did not ask whether [the
attorney] would be able to competently represent [the defendant] or whether she had
learned any facts relevant to [the defendant’s] case from [the source of the potential
conflict].”); State v. Johnson, 185 Ohio App.3d 654, 2010-Ohio-315, 925 N.E.2d 199, ¶ 6 (3d
Dist.) (inquiry into waiver of conflict of interest, but not whether an actual conflict was
present, was an insufficient inquiry); State v. Garcia, 6th Dist. Huron No. H-06-003, 2007-
Ohio-1525, ¶ 17 (“[T]he trial court made adequate inquiry * * * [w]hen * * * the court
questioned [jointly represented defendants] and addressed the inherent difficulties in
multiple representation.”).
{¶11} As a result, we issued a limited remand for the trial court to conduct a hearing
to determine whether an actual conflict of interest existed. See, e.g., In re J.W., 8th Dist.
Geauga No. 2017-G-0139, 2018-Ohio-2020, ¶ 16 (“[W]e remand this case for fifteen (15)
days from the date of this opinion for the trial court to conduct a hearing to determine
whether an actual conflict of interest existed.”), citing State v. Gillard, 64 Ohio St.3d 304,
595 N.E.2d 878 (1992); Williams at ¶ 7 (“If the trial court’s affirmative duty arose but it did
not inquire, the case must be remanded to the trial court with instructions to conduct a
hearing to determine whether an actual conflict of interest existed.”). Our order instructed
the trial court to ascertain whether counsel’s connection with the victim casts doubt on the
5 OHIO FIRST DISTRICT COURT OF APPEALS
integrity of the trial process or otherwise undermines confidence in the verdict. See
Feemorlu at ¶ 17. We noted that the relevant considerations in this case would include the
amount of any campaign contribution(s), the extent of any involvement by counsel as a
volunteer in Judge Rucker’s campaign, and any other connections with Judge Rucker that
might jeopardize counsel’s ability to zealously defend Mr. Fisher on the aggravated
menacing charges.
{¶12} The trial court ably and thoroughly explored these issues on remand.
Scheduling a prompt hearing, it determined that Mr. Thompson made two donations to
Judge Rucker’s campaign, totaling $70. Mr. Thompson testified that he had no other
involvement in Judge Rucker’s campaign whatsoever, adding that he had only very limited
contact with Judge Rucker professionally, practicing in front of him on a few occasions. The
trial court concluded that no actual conflict of interest existed based on these facts.
{¶13} We hold that the trial court’s inquiry on the limited remand sufficed to make
an informed determination on whether an actual conflict of interest existed. We accordingly
turn to the substance of Mr. Fisher’s conflict of interest attack.
B.
{¶14} To prevail in establishing an actual conflict of interest, Mr. Fisher “must
demonstrate that ‘an actual conflict of interest’ adversely affected his lawyer’s performance.”
State v. Barrow, 2018-Ohio-1703, 111 N.E.3d 714, ¶ 37 (1st Dist.), quoting Wood v. Georgia,
450 U.S. 261, 273, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981). That said, “[t]he trial judge has
‘wide latitude’ in determining that an actual or potential conflict exists.” State v. Keenan, 81
Ohio St.3d 133, 137, 689 N.E.2d 929 (1998), quoting United States v. Mays, 69 F.3d 116, 121
(6th Cir.1995). “Therefore, we will only reverse the trial court’s decision if ‘the trial court’s
6 OHIO FIRST DISTRICT COURT OF APPEALS
attitude [was] unreasonable, arbitrary, or unconscionable.’ ” Feemorlu, 2015-Ohio-4528,
46 N.E.3d 1108, at ¶ 13, quoting Keenan at 137.
{¶15} Consistent with the trial court’s assessment of the evidence, we do not believe
that a $70 donation alone establishes diverging interests between Mr. Thompson’s
representation of Mr. Fisher and his connection with Judge Rucker. See Williams, Slip
Opinion No. 2021-Ohio-3152, at ¶ 18 (finding no conflict of interest when the record did not
demonstrate that jointly represented defendants’ “interests diverged”). Although defense
counsel’s connections with the alleged victim could conceivably establish a conflict of
interest that might adversely affect his performance, in this case counsel’s connections with
Judge Rucker were de minimis, and therefore the trial court did not abuse its discretion in
rejecting the conflict claim. We accordingly overrule Mr. Fisher’s first assignment of error.
III.
{¶16} Mr. Fisher’s second assignment of error alleges a deprivation of his right to a
jury trial under the Sixth Amendment to the United States Constitution. “The Sixth
Amendment to the United States Constitution and Article 1, Section 10 of the Ohio
Constitution guarantee a criminal defendant the right to a jury trial.” State v. Sweeting,
2019-Ohio-2360, 138 N.E.3d 567, ¶ 10 (1st Dist.); see State v. Lomax, 114 Ohio St.3d 350,
2007-Ohio-4277, 872 N.E.2d 279, ¶ 6. Nevertheless, Crim.R. 23(A) provides that a criminal
defendant “may knowingly, intelligently, and voluntarily waive in writing
his right to trial by jury.” “Such waiver of trial by jury must be made in open court after the
defendant has been arraigned and has had opportunity to consult with counsel. Such waiver
may be withdrawn by the defendant at any time before the commencement of the trial.”
R.C. 2945.05.
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{¶17} This is an unusual case where Mr. Fisher concedes that he waived his right to
a jury trial and that this waiver satisfied all of the statutory and caselaw requirements. Mr.
Fisher nevertheless maintains that an administrative order suspending jury trials in
Hamilton County because of the COVID-19 pandemic essentially undermined the
voluntariness of his waiver. In other words, he insists that this administrative order posed
an unconstitutional Hobson’s choice—wait indefinitely for the resumption of jury trials or
forego that cherished right.
{¶18} Mr. Fisher cites no authority for the proposition that a temporary suspension
of jury trials violated the Sixth Amendment, nor any cases invalidating waivers of the right
to a jury trial made during such a suspension. While we realize that the suspension of jury
trials placed Mr. Fisher (along with countless others) in a predicament, we see no reason to
disturb an otherwise valid waiver on this record. We thus overrule Mr. Fisher’s second
assignment of error.
IV.
{¶19} Mr. Fisher’s third assignment of error challenges the weight and sufficiency of
the evidence in support of his convictions. In reviewing whether the conviction runs
counter to the manifest weight of the evidence, we sit as a “thirteenth juror.” State v.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). We will reverse the trial court’s
decision to convict and grant a new trial only in “ ‘exceptional cases in which the evidence
weighs heavily against the conviction.’ ” State v. Sipple, 2021-Ohio-1319, 170 N.E.3d 1273,
¶ 7 (1st Dist.), quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st
Dist.1983).
{¶20} And “[t]o determine whether a conviction is supported by sufficient evidence,
‘the relevant inquiry is whether, after viewing the evidence in a light most favorable to the
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prosecution, any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.’ ” State v. Walker, 150 Ohio St.3d 409, 2016-Ohio-
8295, 82 N.E.3d 1124, ¶ 12, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492
(1991), paragraph two of the syllabus.
{¶21} The trial court convicted Mr. Fisher of menacing by stalking under R.C.
2903.211, which provides “[n]o person by engaging in a pattern of conduct shall knowingly
cause another person to believe that the offender will cause physical harm to the other
person or a family or household member of the other person or cause mental distress to the
other person or a family or household member of the other person.”
{¶22} Mr. Fisher’s challenge to the weight and sufficiency of the evidence
supporting his menacing by stalking conviction hinges solely on whether the evidence
sufficed for the trial court to attribute the message left on Mrs. Higgins’s windshield to Mr.
Fisher. Mr. Fisher insists that the court could not reasonably have determined that he
placed it there. It follows, his theory goes, that the convictions for menacing by stalking and
telecommunications harassment would be based on the same conduct (i.e., Mr. Fisher’s
threatening telecommunications) and, therefore, should merge.
{¶23} We need not delve into the merger issue, however, because the evidence
enabled the trial court to attribute the message to Mr. Fisher. Mrs. Higgins testified that she
recognized Mr. Fisher’s writing on the message, and the language of the note echoed his text
messages on the same subject matter. And Mrs. Higgins discovered the message in the
midst of Mr. Fisher’s two-day outburst. On these facts, evidence sufficed for a rational trier
of fact to find Mr. Fisher left the note on the car, thus obviating the merger issue. We
therefore overrule Mr. Fisher’s challenge to his menacing by stalking conviction.
9 OHIO FIRST DISTRICT COURT OF APPEALS
{¶24} The trial court also convicted Mr. Fisher of telecommunications harassment
under R.C. 2917.21(B)(1), which provides “[n]o person shall make or cause to be made a
telecommunication, or permit a telecommunication to be made from a telecommunications
device under the person's control, with purpose to abuse, threaten, or harass another
person.”
{¶25} Mr. Fisher does not dispute the weight of the evidence here. He merely
claims that the evidence fails to substantiate “purpose to abuse, threaten, or harass another
person.” We disagree. Mr. Fisher hurled over 70 pages of messages to Mrs. Higgins over
the course of several days. Capturing the flavor of these messages, Mr. Fisher warned, “I’ma
text you everyday * * *make your life a living hell from on out because I don’t have s*** else
to [lose].” When Mrs. Higgins accused him of “trying to cause paranoia” he embraced that:
“yep that’s my whole goal.” Mrs. Higgins begged that he stop contacting her on multiple
occasions, but the onslaught of messages persisted for two days. The combination of the
substance and volume of these messages enabled a rational trier of fact to conclude beyond
a reasonable doubt that Mr. Fisher acted with the requisite mental state, and we overrule
Mr. Fisher’s challenge to his conviction for telecommunications harassment.
C.
{¶26} Based on his threat to kill Judge Rucker, the trial court convicted Mr. Fisher
of aggravated menacing under R.C. 2903.21, which reads “[n]o person shall knowingly
cause another to believe that the offender will cause serious physical harm to the person or
property of the other person.”
{¶27} Mr. Fisher takes issue with this by disputing whether a threat to a third party
that is not communicated directly to that person can support a conviction for aggravated
10 OHIO FIRST DISTRICT COURT OF APPEALS
menacing. In this regard, he features a Seventh District case where the court found that,
under R.C. 2903.21, “appellant is not guilty of menacing because the alleged victim was
neither the person to whom he addressed his statement nor a close relative of that person.”
State v. Richard, 129 Ohio App.3d 556, 561, 718 N.E.2d 508 (7th Dist.1998). The Richard
court recognized, however, that the First District previously reached the opposite
conclusion. Id. at 559-560, citing State v. Roberts, 1st Dist. Hamilton No. C-890639, 1990
WL 410625, *1-2 (Sept. 26, 1990) (affirming conviction for aggravated menacing when the
defendant made a threatening statement concerning one officer, but not in their presence,
that was later communicated to that officer). Since then, the Seventh District has seemingly
backtracked on Richard. See In re Cunningham, 7th Dist. Harrison No. 02-537-CA, 2002-
Ohio-5875, ¶ 23 (affirming conviction for aggravated menacing where the defendant “could
well have intended for the victims to receive [the threat], albeit through an indirect
method.”).
{¶28} The Fifth, Ninth, and Eleventh Districts have all followed our general
approach in Roberts. State v. McWilliams, 5th Dist. Stark No. 2011-CA-00051, 2012-Ohio-
663, ¶ 27 (“[T]o sustain an aggravated menacing conviction, a threat to cause the harm need
not be made directly to the intended victim, as we found in [a previous case], but may be
sufficient if made to a third-party to whom the defendant knew or reasonably should have
know[n] would convey the threat to the intended victim.”); State v. Knoble, 9th Dist. Lorain
No. 08CA009359, 2008-Ohio-5004, ¶ 13 (“We conclude that R.C. 2903.21 is clear and
unambiguous on its face and does not impose a requirement that the threat of harm must be
uttered directly to the intended victim.”); State v. Nixon, 2014-Ohio-4303, 20 N.E.3d 404,
¶ 18 (11th Dist.) (“[E]ven though the threats were not made directly to [the target or his
family], they were made under circumstances that placed [defendant] on reasonable notice
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that his threats would probably reach [the target or his family] and cause these individuals
to believe that appellant would cause them serious physical harm.”).
{¶29} Based on our own precedent, and the cases from our sister districts, we reject
Mr. Fisher’s theory that the defendant must directly communicate the threat to the intended
victim to sustain a conviction for aggravated menacing. To the contrary, Mr. Fisher must
have made his statement “to a third-party to whom [Mr. Fisher] knew or reasonably should
have know[n] would convey the threat to the intended victim.” See McWilliams at ¶ 27.
{¶30} Here, the evidence established that Mr. Fisher should have known that the
threat would be communicated to Judge Rucker. The text messages reveal that Mr. Fisher
knew that Mrs. Higgins’s mother used to work for Judge Rucker and that he believed that
Judge Rucker had assisted her on the custody matter concerning their son. Viewing these
facts in the light most favorable to the prosecution, a rational trier of fact could convict Mr.
Fisher of aggravated menacing despite the fact that he did not communicate the threat
directly to the victim. He expected that Mrs. Higgins would convey the threat, and in fact
she did. We therefore overrule Mr. Fisher’s challenge to his conviction for aggravated
menacing.
D.
{¶31} The trial court convicted Mr. Fisher of carrying a concealed weapon under
R.C. 2923.12(A)(2), which provides “[n]o person shall knowingly carry or have, concealed
on the person’s person or concealed ready at hand * * * [a] handgun * * * .”
{¶32} Mr. Fisher merely challenges the weight of the evidence here by raising
credibility concerns related to the arresting officer’s testimony. The arresting officer
testified that he stopped Mr. Fisher after running his license plate, which revealed that the
vehicle was registered to a female. On appeal, Mr. Fisher acknowledges that the vehicle was
12 OHIO FIRST DISTRICT COURT OF APPEALS
registered to his mother, but speculates that the officer could not have linked him to his
mother’s registration information. Mr. Fisher asserts, without explanation, that these
circumstances detract from the officer’s credibility. But credibility determinations are
generally questions for the trier of fact to resolve. State v. Ham, 1st Dist. Hamilton No. C-
170043, 2017-Ohio-9189, ¶ 21 (“[I]t is well settled law that matters as to the credibility of
witnesses are for the trier of fact to resolve.”). And we do not believe that this collateral
credibility question weighs heavily against the integrity of the conviction. We therefore
overrule Mr. Fisher’s challenge to his conviction for carrying a concealed weapon.
V.
{¶33} Mr. Fisher’s fourth assignment of error claims a deprivation of his right to
effective assistance of counsel. “ ‘When a convicted defendant complains of the
ineffectiveness of counsel’s assistance, the defendant must show that counsel’s
representation fell below an objective standard of reasonableness.’ ” State v. Sanders, 94
Ohio St.3d 150, 151, 761 N.E.2d 18 (2002), quoting Strickland v. Washington, 466 U.S.
668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “Furthermore, ‘the defendant must
show that there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’ ” Id., quoting Strickland at 694. Ohio
courts must give “ ‘a heavy measure of deference to counsel’s judgments’ ” and “ ‘indulge a
strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.’ ” Id., quoting Strickland at 689, 691.
{¶34} Mr. Fisher complains about the denial of effective assistance of counsel
because his lawyer did not argue that he had a valid concealed handgun license (“CHL”), a
defense to the carrying a concealed weapon offense. Although Mr. Fisher testified that his
13 OHIO FIRST DISTRICT COURT OF APPEALS
CHL was expired at the time of his arrest, the Ohio General Assembly passed 2020
Am.Sub.H.B. 197 (“H.B. 197”) in March 2020, which provided a 90-day extension to renew
one’s CHL in light of the COVID-19 pandemic. Under section 11(E)(2) of the bill, if a CHL
expired before its effective date, “[i]n such a case, the ninety-day extension period * * * shall
be considered to have commenced on that date of scheduled expiration.” On appeal, Mr.
Fisher suggests that H.B. 197 extended the effectiveness of his CHL.
{¶35} Although Mr. Fisher may well be correct on this point, we see nothing in the
record that validates his conclusion. Without proof of when his CHL expired, the record
does not establish a reasonable probability that, if counsel had raised this theory, the result
of the proceeding would have differed. Therefore, Mr. Fisher falls short on the prejudice
prong of Strickland, and we accordingly overrule Mr. Fisher’s fourth assignment of error
based on the state of this record.
VI. {¶36} Mr. Fisher’s fifth assignment of error asserts that the trial court erred by
forfeiting his handgun without including a forfeiture specification in the complaint or the
bill of particulars, as R.C. Chapter 2981 requires. The state concedes that the forfeiture of
Mr. Fisher’s firearm was improper, but notes that the firearm may have been destroyed
pursuant to the trial court’s order. We therefore sustain Mr. Fisher’s fifth assignment of
error, and order the trial court to return the firearm to Mr. Fisher if it has not been
destroyed.
* * *
{¶37} For all of the foregoing reasons, we overrule Mr. Fisher’s first, second, third,
and fourth assignments of error. But we sustain Mr. Fisher’s fifth assignment of error, and
remand this cause for further proceedings consistent with this opinion.
14 OHIO FIRST DISTRICT COURT OF APPEALS
Judgment accordingly. ZAYAS, P. J., and WINKLER, J., concur. Please note:
The court has recorded its entry on the date of the release of this opinion