[Cite as State v. Gooding, 2021-Ohio-173.]
COURT OF APPEALS HOLMES COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. Craig R. Baldwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. John W. Wise, J. -vs- Case No. 20CA007 MATTHEW L. GOODING
Defendant-Appellant O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Holmes County Court of Common Pleas, Case No. 19CR096
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 25, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
SEAN WARNER DAVID M. HUNTER Prosecuting Attorney 244 West Main Street Holmes County, Ohio Loudonville, Ohio 44842
ROBERT K. HENDRIX Assistant Prosecuting Attorney Holmes County, Ohio 164 East Jackson Street Millersburg, Ohio 44654 Holmes County, Case No. 20CA007 2
Hoffman, J. {¶1} Appellant Matthew Gooding appeals the judgment entered by the Holmes
County Common Pleas Court convicting him of five counts of aggravated menacing (R.C.
2903.21(A),(B)) and sentencing him to an aggregate term of incarceration of thirty-six
months. Appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On August 7, 2019, Paula Shearer held an intake session with Appellant at
One Eighty, an agency in Millersburg, Ohio, where she was employed as an outpatient
counselor. Appellant was referred to the agency by the Holmes County Probation
Department. At this session, Ms. Shearer explained to Appellant the limits of
confidentiality, explaining she was a mandatory reporter. She told Appellant if he
answered yes to any of the questions in a specific section of the assessment, she would
be required to report he was threatening harm to himself or others. Further, Appellant
signed a release, allowing her to discuss his progress with the probation department.
{¶3} After missing several counseling sessions, Appellant appeared for his
September 13, 2019 session with Ms. Shearer in a state of extreme anger. He had no
water or electricity at his home. Ten years earlier, his children had been removed from
his custody by the Holmes County Department of Job and Family Services, Department
of Children’s Services. Appellant stated he wanted to hurt the Department the way they
had hurt him. He was mapping out a plan. He stated he did not know when he would do
it, because he did not think his mother should lose her son based on what he was
planning. He became more enraged as he spoke, stating, “They will pay for this.” Tr. 53.
He also told Ms. Shearer he was watching Children’s Services workers at their homes,
observing them through their windows while they were watching television and eating. Holmes County, Case No. 20CA007 3
Ms. Shearer became concerned Appellant would harm employees of the Department,
specifically based on his statement he did not care if he died carrying out his plan. She
became afraid for her own safety during the session. Appellant terminated the session
and walked out of the office.
{¶4} Ms. Shearer reported the threats to the probation department, who in turn
reported the threats to Children’s Services and the Holmes County Sheriff’s Department.
Dan Jackson, Marla Croskey, Kelsey MacFarlane, and Christy Henry, all current
employees of Children’s Services, felt threatened by the comments, as did Emily Ayers,
who was Appellant’s ongoing caseworker ten years prior but no longer worked for
Children’s Services. The employees were all aware Appellant lived within a few blocks
of their office. Ms. MacFarlane lived near Appellant, and had observed Appellant staring
at her and her family.
{¶5} Appellant was indicted by the Holmes County Grand Jury with five counts
of aggravated menacing, each including a specification the named victim was an officer
or employee of a public children services agency, and the offense related to the officer or
employee’s performance or anticipated performance of official responsibilities or duties.
{¶6} The case proceeded to jury trial. Appellant was found guilty of four counts,
including the specifications the named victim was a children services employee, making
the crimes felonies of the fifth degree. Appellant was found guilty of aggravated menacing
in the fifth count, related to Emily Ayers, without the accompanying specification, a
misdemeanor of the first degree. The trial court convicted Appellant in accordance with
the jury’s verdict and sentenced him to nine months incarceration on each of the felony
convictions, to be served consecutively, and to six months incarceration on the Holmes County, Case No. 20CA007 4
misdemeanor conviction, to be served concurrently, for an aggregate sentence of thirty-
six months.
{¶7} It is from the February 26, 2020 judgment of conviction and sentence
Appellant prosecutes his appeal, assigning as error:
I. APPELLANT’S CONVICTIONS FOR AGGRAVATED MENACING
ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
II. THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE
CONVICTIONS FOR AGGRAVATED MENACING.
III. THE TRIAL COURT ERRED IN DENYING APPELLANT’S
MOTION FOR ACQUITTAL AT THE CLOSE OF THE STATE’S CASE.
IV. THE TRIAL COURT ERRED IN ALLOWING TESTIMONY
ABOUT PRIOR BAD ACTS OF THE APPELLANT BY THE STATE’S
WITNESSES.
I., II., III.
{¶8} Because the issues of manifest weight and sufficiency of the evidence are
closely related, we address Appellant’s first three assignments of error together.
{¶9} In determining whether a verdict is against the manifest weight of the
evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,
weighs the evidence and all reasonable inferences, considers the credibility of witnesses,
and determines whether in resolving conflicts in evidence the jury ‘clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and Holmes County, Case No. 20CA007 5
a new trial ordered.’” State v. Thompkins, 78 Ohio St. 3d 380, 387, 1997-Ohio-52, 678
N.E.2d 541, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1983).
{¶10} 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, 574 N.E.2d 492,
paragraph two of the syllabus (1991).
{¶11} A Crim. R. 29(A) motion for acquittal tests the sufficiency of the evidence
presented at trial. State v. Blue, 5th Dist. Stark No.2001CA00250, 2002–Ohio–351, citing
State v. Williams, 74 Ohio St.3d 569, 576, 1996–Ohio–91, 660 N.E.2d 724; State v. Miley,
114 Ohio App.3d 738, 742, 684 N.E.2d 102 (4th Dist.1996). Crim. R. 29(A) allows a trial
court to enter a judgment of acquittal when the state's evidence is insufficient to sustain
a conviction. A trial court should not sustain a Crim. R. 29 motion for acquittal unless,
after viewing the evidence in a light most favorable to the state, the court finds no rational
finder of fact could find the essential elements of the charge proven beyond a reasonable
doubt. State v. Franklin, 5th Dist. Stark No.2007–CA–00022, 2007–Ohio–4649 at ¶ 12,
citing State v. Dennis, 79 Ohio St.3d 421, 1997–Ohio–372, 683 N.E.2d 1096.
{¶12} Appellant was convicted of five counts of aggravated menacing in violation
of R.C. 2903.21, which provides:
(A) No person shall knowingly cause another to believe that the
offender will cause serious physical harm to the person or property of
the other person, the other person's unborn, or a member of the other Holmes County, Case No. 20CA007 6
person's immediate family. In addition to any other basis for the other
person's belief that the offender will cause serious physical harm to the
person or property of the other person, the other person's unborn, or a
member of the other person's immediate family, the other person's belief
may be based on words or conduct of the offender that are directed at
or identify a corporation, association, or other organization that employs
the other person or to which the other person belongs.
(B) Whoever violates this section is guilty of aggravated menacing.
Except as otherwise provided in this division, aggravated menacing is a
misdemeanor of the first degree. If the victim of the offense is an officer
or employee of a public children services agency or a private child
placing agency and the offense relates to the officer's or employee's
performance or anticipated performance of official responsibilities or
duties, aggravated menacing is a felony of the fifth degree or, if the
offender previously has been convicted of or pleaded guilty to an offense
of violence, the victim of that prior offense was an officer or employee of
a public children services agency or private child placing agency, and
that prior offense related to the officer's or employee's performance or
anticipated performance of official responsibilities or duties, a felony of
the fourth degree.
{¶13} Appellant specifically argues the State failed to prove he made a threat to
the employees of Children’s Services. He argues even if the evidence could be construed Holmes County, Case No. 20CA007 7
as a threat, he did not make a threat of serious physical harm. He also argues the threat
was not made to a third party Appellant knew or reasonably should have known would
convey the threat to the intended victim, because Ms. Shearer’s statements to him
regarding the limits of confidentiality concerned solely the initial diagnostic assessment,
and not subsequent counseling sessions.
{¶14} Appellant argues his statement he wanted to hurt Children’s Services as
much as they hurt him was not a threat at all, and even if construed as a threat, was not
a threat of serious physical harm. While the statement he wanted to hurt them as much
as they hurt them standing alone might not be a threat of serious physical harm, Appellant
went on to tell Ms. Shearer he was mapping out a plan. He expressed to Ms. Shearer he
was not sure when he would carry out the plan, because he did not want his mother to
lose her son because of what he was planning. He indicated he did not care if he died
carrying out his plan. He further stated he had been watching employees of Children’s
Services through the windows of their homes while they were eating and watching
television. Taking all of Appellant’s statements together, reasonable minds could find
Appellant caused employees of Children’s Services to believe he would cause serious
physical harm to their person or property. His statements to Ms. Shearer reflect he had
mapped out a plan of such magnitude he could lose his life carrying it out, and further he
had taken the step of watching the employees of Children’s Services through the windows
of their homes. The judgment is supported by sufficient evidence, and the trial court did
not err in failing to direct a verdict on this issue. We further find the jury did not lose its
way in concluding Appellant caused the victims in this case to believe he would cause Holmes County, Case No. 20CA007 8
serious physical harm to their person or property, and the judgment is not against the
manifest weight of the evidence.
{¶15} Appellant also argues he did not make the threat to a person whom he knew
or reasonably should have known would convey the threat to the intended victim. Ms.
Shearer testified when she went over the diagnostic intake form with Appellant, she
indicated if he answered yes to any of the questions in a portion of the assessment, she
would be bound to report his answers to authorities concerning his threats to harm himself
or others. He argues this communication should be interpreted as applying solely to the
assessment, and not to any further statements he made during future counseling
sessions concerning harm to himself or others. However, Ms. Shearer also testified
Appellant signed a release which allowed her to communicate with the probation
department concerning his progress in counseling session. From Ms. Shearer’s
communication during the diagnostic assessment she would be required to report threats
of harm, coupled with Appellant’s choice to sign a release of information to the probation
department, reasonable minds could conclude Appellant made the threat to a person he
knew or reasonably should have known would convey the threat to the probation
department, which would ultimately reach the intended victims. We find the jury did not
lose its way in finding Appellant reasonably should have known the threat would be
communicated to the victims, and accordingly we find the judgment is not against the
manifest weight or sufficiency of the evidence.
{¶16} The first, second, and third assignments of error are overruled. Holmes County, Case No. 20CA007 9
IV.
{¶17} In his fourth assignment of error, Appellant argues the court erred in
admitting evidence of prior bad acts.
{¶18} Evid. R. 404(B) provides:
(B) Other Crimes, Wrongs or Acts. Evidence of other crimes,
wrongs, or acts is not admissible to prove the character of a person in
order to show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or
accident. In criminal cases, the proponent of evidence to be offered
under this rule shall provide reasonable notice in advance of trial, or
during trial if the court excuses pretrial notice on good cause shown, of
the general nature of any such evidence it intends to introduce at trial.
{¶19} “Because R.C. 2945.59 and Evid.R. 404(B) codify an exception to the
common law with respect to evidence of other acts of wrongdoing, they must be construed
against admissibility, and the standard for determining admissibility of such evidence is
strict.” State v. Broom, 40 Ohio St.3d 277, 281–82, 533 N.E.2d 682, 689–90 (1988).
Evidence to prove the “type” of person the defendant is in order to show he acted in
conformity therewith in the instant case is barred by Evid.R. 404(B). State v. Greene, 5th
Dist. Tuscarawas No. 2012 AP 02 0018, 2012–Ohio–5624, 983 N.E.2d 773, ¶ 35. Holmes County, Case No. 20CA007 10
{¶20} The Ohio Supreme Court has set forth a three-part test for determining the
admissibility of other acts evidence:
The first step is to consider whether the other acts evidence is
relevant to making any fact that is of consequence to the determination
of the action more or less probable than it would be without the evidence.
Evid.R. 401. The next step is to consider whether evidence of the other
crimes, wrongs, or acts is presented to prove the character of the
accused in order to show activity in conformity therewith or whether the
other acts evidence is presented for a legitimate purpose, such as those
stated in Evid.R. 404(B). The third step is to consider whether the
probative value of the other acts evidence is substantially outweighed
by the danger of unfair prejudice. See Evid.R 403.
{¶21} State v. Williams, 134 Ohio St.3d 521, 2012–Ohio–5695, 983 N.E.2d 1278,
¶ 20 (2012).
{¶22} “[A] trial court is vested with broad discretion in determining the admissibility
of evidence in any particular case, so long as such discretion is exercised in line with the
rules of procedure and evidence.” Rigby v. Lake Cty., 58 Ohio St. 3d 269, 271, 569
N.E.2d 1056 (1991).
{¶23} Appellant argues the court erred in admitting evidence of prior bad acts
through the testimony of several of the State’s witnesses. Ms. Shearer testified Appellant
told her he used alcohol when he could not receive his drug of choice. Tr. 52. Mr. Jackson Holmes County, Case No. 20CA007 11
testified Appellant was involved in a case of substantiated sexual abuse, and knew
Appellant’s criminal history and what Appellant had been arrested for in the past. Tr. 66,
70. Ms. Croskey also testified Appellant had been involved with the agency for sexual
abuse of his children. Tr. 81. She further testified concerning Appellant’s drug abuse
and prior threats he had made with weapons to the agency. Tr. 81-87. She testified their
records contained documented threats made by Appellant in the past, and she was aware
of prior domestic violence committed by Appellant. Tr. 88. Ms. Henry testified before she
worked for Children’s Services she was a newspaper reporter, and had observed
Appellant in the courtroom a handful of times while covering proceedings for the
newspaper. Tr. 95. Emily Ayers testified concerning criminal activity by Appellant during
the time she was his caseworker, including domestic violence and violation of a no contact
order issued to Appellant’s wife. Tr. 113-114. She testified Appellant demonstrated a
pattern of domestic violence, drug abuse, mental health issues, and other criminal
behavior which escalated during her involvement with the family. Tr. 123. Sgt. Henry of
the Holmes County Sheriff’s Department also testified he had “past experiences” with
Appellant. Tr. 143.
{¶24} In aggravated menacing cases where the victim's subjective belief that the
offender will cause the victim physical harm is an element of the offense, “evidence of a
defendant's violent character is admissible to prove that the victim believed that the
defendant would cause physical harm.” City of Cleveland v. Reynolds, 8th Dist. Cuyahoga
No. 105546, 2018-Ohio-97, ¶ 12, citing Cleveland v. McCoy, 8th Dist. Cuyahoga No.
103276, 2016–Ohio–3451, ¶ 4. We find the trial court did not err in admitting evidence of
Appellant’s prior criminal history and past threats made to the Department of Children’s Holmes County, Case No. 20CA007 12
Services. Evidence Appellant sexually abused his children, committed acts of domestic
violence against his wife despite the no contact order, and had a history of threatening
the Department with and without weapons were admissible not to show he acted in
conformity therewith on the instant occasion, but to demonstrate the victims believed
Appellant would cause them serious physical harm.
{¶25} However, we find evidence of Appellant’s drug and alcohol use does not
meet the standard for admissibility set forth in Williams, supra. Unlike evidence of past
violent acts or threats of violent acts, evidence Appellant used drugs and alcohol does
not tend to demonstrate any fact at issue in the instant case. We find the evidence of
Appellant’s drug and alcohol use in this case is not admissible for any of the purposes set
forth in Evid. R. 404(B). Because this evidence is of virtually no probative value in the
instant case, we conclude under the third prong of Williams, supra, its probative value is
substantially outweighed by the danger of unfair prejudice, and such evidence should not
have been admitted..
{¶26} Although we find the trial court erred in admitting evidence of Appellant’s
drug and alcohol use, we find the error to be harmless in the instant case. Crim.R. 52(A)
defines harmless error in the context of criminal cases and provides: “Any error, defect,
irregularity, or variance which does not affect substantial rights shall be disregarded.”
Under the harmless-error standard of review, “the government bears the burden of
demonstrating that the error did not affect the substantial rights of the defendant.” State
v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 15, citing United States
v. Olano, 507 U.S. 725, 741, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). First, it must be
determined whether the defendant was prejudiced by the error, i.e., whether the error had Holmes County, Case No. 20CA007 13
an impact on the verdict. Second, it must be determined whether the error was not
harmless beyond a reasonable doubt. Lastly, once the prejudicial evidence is excised,
the remaining evidence is weighed to determine whether it establishes the defendant's
guilt beyond a reasonable doubt. State v. Harris, 142 Ohio St.3d 211, 2015-Ohio-166, 28
N.E.3d 1256, ¶ 37.
{¶27} As discussed in Appellant’s first three assignments of error, the evidence
demonstrated Appellant told his counselor he intended to hurt the Children’s Services
department, he was mapping out a plan, and such plan might result in his mother losing
her son. He indicated he was not afraid to die carrying out his plan, and had started to
watch employees of Children’s Services through the windows of their homes. Employees
of Children’s Services testified they were afraid for their own safety and that of their
families, based not only on the threats themselves, but on their past interactions with
Appellant and their knowledge of his past violent conduct directed toward the Department
and toward others. We find any error in admitting brief references to Appellant’s use of
drugs and alcohol did not have an impact on the verdict, the error was harmless beyond
a reasonable doubt, and the other evidence in the case established Appellant’s guilt
beyond a reasonable doubt. Holmes County, Case No. 20CA007 14
{¶28} The fourth assignment of error is overruled. The judgment of the Holmes
County Common Pleas Court is affirmed.
By: Hoffman, J. Baldwin, P.J. and Wise, J. concur