State v. Kendall

2011 Ohio 2475

• Court: Ohio Court of Appeals
• Decided: May 19, 2011
• Docket: 10CA26
• Status: Published

Opinion

[Cite as State v. Kendall , 2011-Ohio-2475.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY

STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 10CA26 : vs. : Released: May 19, 2011 : ERIC T. KENDALL, : DECISION AND JUDGMENT : ENTRY Defendant-Appellant. : _____________________________________________________________ APPEARANCES:

Chandra L. Ontko, Cambridge, Ohio, for Appellant.

Roland W. Riggs, III., Marietta City Law Director, and Mark Sleeper, Marietta City Assistant Law Director, Marietta, Ohio, for Appellee. _____________________________________________________________

McFarland, J.:

{¶1} Defendant-Appellant, Eric T. Kendall, appeals the decision of

the Marietta Municipal Court that found him guilty, after a jury convicted

him on two counts of menacing, fourth degree misdemeanors, in violation of

R.C. 2903.22. Appellant's counsel, after reviewing the record, states she can

find no meritorious claim for appeal and, pursuant to Anders v. California,

requests permission to withdraw from the case. However, counsel presented

one potential assignment of error for us to consider. Counsel suggests that

the judgment was against the manifest weight of the evidence. However, as Washington App. No. 10CA26 2

we find this potential assignment of error to be wholly frivolous, we grant

counsel's request to withdraw and affirm the decision of the trial court.

FACTS

{¶2} Appellant, Eric Kendall, and Miranda Duty are divorced and

have three children, M.K, C.K., and E.K., who were ages 8, 11, and 12,

respectively, at the time of the events that are the subject of this appeal. On

or about March 6, 2010, Appellant’s children were visiting him for the

weekend. Over the course of the weekend, Appellant made several

disturbing statements either to or in the presence of his children. After

coming home from a bar on Saturday during the weekend visitation,

Appellant’s clothes had blood on them, which he stated was a result of

beating someone up in a bar fight. According to E.K., Appellant then stated

that the children’s mother, as well the mother’s boyfriend, were going to get

the same thing, but worse. Also, according to E.K., Appellant later stated he

was going to do the same thing to the children, and also stated that he was

going blow the children’s mother’s brains out. According to M.K.,

Appellant threatened to kill his kids and their grandmother too.1 According

to both E.K and M.K. they were afraid because they had previously

witnessed their father beat their mother.

1 M.K. stated that this statement was directed towards Appellant’s mother (the children’s’ grandmother) who was the caretaker of the children during the weekend and who was present during these statements. Washington App. No. 10CA26 3

{¶3} The children returned home to their mother on Sunday and told

her of the events during the weekend. Miranda Duty contacted Childrens’

Services and Appellant’s mother, however, Appellant’s mother denied that

anything happened over the weekend. Prior to the next scheduled visitation

on Wednesday evening, M.K. wrote a note and sent it home from school

with a friend whose father is Officer Matt McCracken. Based upon the

testimony of Miranda Duty, Officer McCracken called her at home and told

her that M.K. has sent him a note stating that she was afraid her father was

going to kill her.

{¶4} Thereafter, an investigation ensued and on July 9, 2010, two

criminal complaints were filed charging Appellant with menacing. The first

complaint alleged that Appellant knowingly caused M.K. to believe that he

would cause physical harm to her or her property. The second complaint

alleged that Appellant knowingly caused M.K. to believe that he would

cause physical harm to her or her property, or to the person or property of

Miranda Duty, a member of M.K.’s immediate family. Appellant pled not

guilty to the charges and the matter proceeded to a jury trial.

{¶5} Prior to the commencement of the jury trial on August 12, 2010,

the parties made arguments to the court regarding the proper jury

instructions to be given at trial. Specifically, the parties disagreed over the Washington App. No. 10CA26 4

definition of “immediate family” as contained in R.C. 2903.22. Over the

objection of Appellant, the trial court decided upon an instruction which

included “parent” as a member of one’s immediate family. Ultimately, the

jury convicted Appellant of both counts of menacing. The trial court

sentenced Appellant to thirty days in jail on the first count and thirty days on

the second count, but suspended the jail sentence on the second count.

Appellant was also ordered to pay a fine and costs, and was placed on

probation for two years.

ANDERS BRIEF

{¶6} Appellant's counsel has filed an Anders brief in this action.

Under Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, counsel

may ask permission to withdraw from a case when counsel has

conscientiously examined the record, can discern no meritorious claims for

appeal, and has determined the case to be wholly frivolous. Id. at 744; State

v. Adkins, Gallia App. No. 03CA27, 2004-Ohio-3627, at ¶ 8. Counsel's

request to withdraw must be accompanied with a brief identifying anything

in the record that could arguably support the client's appeal. Anders, 386

U.S. at 744; Adkins at ¶ 8. Further, counsel must provide the defendant with

a copy of the brief and allow sufficient time for the defendant to raise any

other issues, if the defendant chooses to do so. Id. Washington App. No. 10CA26 5

{¶7} Once counsel has satisfied these requirements, the appellate

court must conduct a full examination of the trial court proceedings to

determine if meritorious issues exist. If the appellate court determines that

the appeal is frivolous, it may grant counsel's request to withdraw and

address the merits of the case without affording the appellant the assistance

of counsel. Id. If, however, the court finds the existence of meritorious

issues, it must afford the appellant assistance of counsel before deciding the

merits of the case. Anders, 386 U.S. at 744; State v. Duran, Ross App. No.

06CA2919, 2007-Ohio-2743, at ¶ 7.

{¶8} In the current action, Appellant's counsel concludes the appeal is

wholly frivolous and has asked permission to withdraw. Pursuant to Anders,

counsel has filed a brief raising one potential assignment of error for this

court to consider.

POTENTIAL ASSIGNMENT OF ERROR

“THE JUDGMENT AGAINST THE DEFENDANT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

ANALYSIS

{¶9} We agree with Appellant's counsel that an appeal based upon a

manifest weight argument would be wholly frivolous. Appellant's potential

assignment of error asserts the judgment was against the manifest weight of

the evidence. Appellant’s contention is premised on his argument that the Washington App. No. 10CA26 6

trial court gave an incorrect jury instruction with respect to the definition of

“immediate family” for the second count of menacing. Thus, in order to

properly address Appellant’s manifest weight argument, we must first

determine whether the jury instruction provided was proper.

{¶10} Generally, a trial court has broad discretion in deciding how to

fashion jury instructions. A trial court must not, however, fail to “fully and

completely give the jury all instructions which are relevant and necessary for

the jury to weigh the evidence and discharge its duty as the fact finder.”

State v. Comen (1990), 50 Ohio St.3d 206, 553 N.E.2d 640, paragraph two

of the syllabus. Additionally, a trial court may not omit a requested

instruction, if such instruction is “ ‘a correct, pertinent statement of the law

and [is] appropriate to the facts * * *.’ ” State v. Lessin (1993), 67 Ohio

St.3d 487, 493, 620 N.E.2d 72; quoting, State v. Nelson (1973), 36 Ohio

St.2d 79, 303 N.E.2d 865, paragraph one of the syllabus.

{¶11} Here, Appellant was charged with menacing, in violation of

R.C. 2903.22, which states in (A) that:

“No person shall knowingly cause another to believe that the offender will cause 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.”

Appellant’s potential assignment of error only challenges his conviction with

respect to count two, which alleged that he knowingly caused M.K. to Washington App. No. 10CA26 7

believe he would cause physical harm to Miranda Duty, M.K.’s mother. At

issue is the definition to be afforded “immediate family,” which is not

defined in R.C. 2903.22.

{¶12} Before trial and on appeal, Appellant contends that the

definition of “immediate family” as set forth in Ohio’s model jury

instructions should have been provided to the jury. Appellant contends that

had this instruction been given, Miranda Duty, as M.K.’s parent, would not

have fit the definition of “immediate family” and therefore he could not have

been convicted on count two. OJI CR 503.22 “Menacing” provides that “

‘immediate family’ means a person’s spouse residing in the person’s

household, brothers and sisters of the whole or half blood, and children,

including adopted children.” OJI CR 503.22 references R.C. 2905.21(I) in

support of this definition. R.C. Chapter 2905 however, is entitled

“Kidnapping and Extortion,” as opposed to menacing, found under R.C.

Chapter 2903, which is entitled “Homicide and Assault.” Further, R.C.

2905.21 is self limiting in its application, stating as follows:

“As used in sections 2905.21 to 2905.24 of the Revised Code: * * * (I)

‘Immediate family’ means a person’s spouse residing in the person’s

household, brothers and sisters of the whole or of the half blood, and Washington App. No. 10CA26 8

children, including adopted children.” Clearly, menacing falls under a

different chapter of the Revised Code.

{¶13} The trial court rejected the defendant’s argument, and also

disagreed with the definition provided in the model jury instruction. Instead,

the trial court provided the following definition as part of its instructions to

the jury:

“Immediate family means a person’s spouse residing in the household,

brothers and sisters of whole or half blood, children including adopted

children, and parents or grandparents.” For the following reasons, we

conclude that the instruction given the to jury was proper with respect to

defining a parent as a member of one’s immediate family.

{¶14} First, as mentioned above, by its own terms, the definition of

“immediate family” found in R.C. 2905.21(I) is limited to its use in sections

2905.21 to 2905.24 of the Revised Code. Next, R.C. 2903.22 does not

define “immediate family.” In the absence of a statutory definition, a term

“is to be accorded its common, everyday meaning.” State v. Dorso (1983), 4

Ohio St.3d 60, 62, 446 N.E.2d 449; see, also, Huffer and Huffer Co., L.P.A.

v. Weaver, Pickaway App. No. 87CA33, 1988 WL 130689; R.C. 1.42.

Black’s Law Dictionary defines “immediate family” as follows: “1. A

person’s parents, spouse, children, and siblings. 2. A person’s parents, Washington App. No. 10CA26 9

spouse, children, and siblings, as well as those of the person’s spouse.

Stepchildren and adopted children are [usually] immediate family members.

* * *” Thus, the common, everyday meaning of the term “immediate

family” includes one’s parents. As such, we cannot conclude that the trial

court erred in defining “immediate family” to include one’s parents.

{¶15} Nor can we find that Appellant’s conviction was against the

manifest weight of the evidence. When determining whether a criminal

conviction is against the manifest weight of the evidence, we “will not

reverse a conviction where there is substantial evidence upon which the

[trier of fact] could reasonably conclude that all the elements of an offense

have been proven beyond a reasonable doubt.” State v. Eskridge (1988), 38

Ohio St.3d 56, 526 N.E.2d 304, paragraph two of the syllabus. See, also,

State v. Smith, Pickaway App. No. 06CA7, 2007-Ohio-502 at ¶ 41. We

“must review the entire record, weigh the evidence and all reasonable

inferences, consider the credibility of the witnesses, and determine whether,

in resolving conflicts in the evidence, the trier of fact clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be

reversed and a new trial granted.” Smith at ¶ 41, citing State v. Garrow

(1995), 103 Ohio App.3d 368, 370-371, 659 N.E.2d 814; State v. Martin

(1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717. However, “[o]n the trial Washington App. No. 10CA26 10

of a case, * * * the weight to be given the evidence and the credibility of the

witnesses are primarily for the trier of the facts.” State v. DeHass (1967) 10

Ohio St.2d 230, 227 N.E.2d 212, paragraph one of the syllabus.

{¶16} At trial, E.K. and M.K. both testified that Appellant made

threats to kill them, as well as their mother. The evidence also reflects that

E.K. and M.K. believed that Appellant would cause harm to their mother

because they had witnessed prior violence between the couple. Appellant

made these statements in the presence of his children while they were having

weekend visitation with him, knowing that they could hear him. As such,

the jury could have concluded that all the elements of the offense were

supported by substantial evidence and proven beyond a reasonable doubt.

{¶17} Although Appellant’s mother, Barbara Kendall, provided a

different version of the events, the weight to be given the evidence and the

credibility of the witnesses were primarily for the trier of fact to determine.

State v. DeHass, supra, at paragraph one of the syllabus. Moreover, our

review of the record does not persuade us that the trier of fact clearly lost its

way and created a manifest miscarriage of justice in finding Appellant guilty

on the second count of menacing.

{¶18} As such, we agree with Appellant's counsel that an appeal based

upon a manifest weight argument would be wholly frivolous. Further, our Washington App. No. 10CA26 11

independent review of the record reveals no meritorious issues for appeal.

Accordingly, we hereby grant counsel's motion to withdraw and affirm the

trial court's judgment.

JUDGMENT AFFIRMED. Washington App. No. 10CA26 12

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee recover of Appellant costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Marietta Municipal Court to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

Abele, J. and Kline, J.: Concur in Judgment and Opinion.

For the Court,

BY: _________________________ Matthew W. McFarland, Judge

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.