State v. March-Natali

2022 Ohio 4061

• Court: Ohio Court of Appeals
• Decided: November 14, 2022
• Docket: 2022-T-0022
• Status: Published

Opinion

[Cite as State v. March-Natali, 2022-Ohio-4061.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY

STATE OF OHIO, CASE NO. 2022-T-0022

Plaintiff-Appellee, Criminal Appeal from the - vs - Newton Falls Municipal Court

BENJAMIN THOMAS MARCH-NATALI, Trial Court No. 2021 CRB 00476 Defendant-Appellant.

OPINION

Decided: November 14, 2022 Judgment: Affirmed

Chris Crull, City of Newton Falls Prosecutor, 20 South Canal Street, Newton Falls, OH 44444 (For Plaintiff-Appellee).

Mary Ellen Ditchey, Urban Co., LPA, 434 High Street, N.E., P.O. Box 792, Warren, OH 44482 (For Defendant-Appellant).

MATT LYNCH, J.

{¶1} Defendant-appellant, Benjamin Thomas March-Natali, appeals his

convictions for two counts of Aggravated Menacing following a bench trial in the Newton

Falls Municipal Court. For the following reasons, we affirm the convictions.

{¶2} On July 15, 2021, a Complaint was filed charging March-Natali with two

counts of Aggravated Menacing, misdemeanors of the first degree in violation of R.C.

2903.21(A).

{¶3} On February 8, 2022, the case was tried to the court. The following

testimony was given: {¶4} Detective Steve Lyden of the Newton Falls Police Department testified that

at about 8:00 p.m., on July 14, 2022, he responded to a reported disturbance at Advance

Auto Parts on Milton Boulevard in Newton Falls. En route to the store, Lyden stopped

March-Natali’s vehicle which matched the description of the suspect’s vehicle. Lyden

recovered an unloaded Taurus handgun that March-Natali had in a hip holster.

{¶5} Detective Lyden proceeded to Advance Auto Parts where he took written

statements from two store clerks who were present during the disturbance. Each clerk

testified at trial regarding his impression of the disturbance.

{¶6} Joshua Garvey testified that he was working at Advance Auto Parts when

March-Natali came in the store wanting to return a toggle switch. After being told he could

not return it, March-Natali raised his shirt exposing a handgun and said, “I bet you will” or

“you’re gonna take it back.” Garvey thought the handgun was probably in a holster.

March-Natali became angry and hostile. Garvey called the police believing that March-

Natali was threatening harm. Then March-Natali left the store.

{¶7} Ethan Davenport testified that he was also working at Advance Auto Parts

when March-Natali asked to return the toggle switch. Davenport refused to accept the

return, and March-Natali “proceeded to make some sort of motion where I [Davenport]

saw his weapon tucked into his side of his hip and tell me I am going to return it.” As

March-Natali was driving away he stopped, pointed at Davenport’s and Garvey’s vehicles,

and mouthed the words, “you better watch out.” Davenport understood March-Natali’s

conduct as threatening harm.

{¶8} March-Natali testified in his own defense that he only wanted to exchange

the toggle switch, not return it. He swore at the clerks but never threatened them. He did

Case No. 2022-T-0022 not lift up his shirt but did pull his shorts up because they were falling down. As he was

pulling out of the parking lot, he stopped to laugh at the clerks’ trucks because they “were

a couple of beaters.”

{¶9} The municipal court found March-Natali guilty of both counts of Aggravated

Menacing but merged them “under the circumstances of this case.” The court fined

March-Natali $500 and sentenced him to 90 days in the Trumbull County Jail; $300 of the

fine and the jail sentence were suspended on the condition that he comply with the terms

of probation for one year.

{¶10} On March 16, 2022, March-Natali filed a Notice of Appeal. On appeal, he

raises the following assignments of error:

[1.] Defendant’s convictions were against the manifest weight of the evidence.

[2.] Trial counsel was ineffective because he failed to: (A) request a separation of witnesses, (B) impeach witnesses, (C) subpoena any video footage of the incident.

[3.] Defendant was prejudiced by the refusal of the trial court to grant him separate trials of the two complaints under Crim.R. 14.

[4.] Defendant was denied his rights under the Sixth Amendment to self- representation.

[5.] Defendant’s due process rights were violated when the State failed to subpoena potentially exculpatory evidence.

{¶11} The assignments of error will be considered out of order.

{¶12} Under the fourth assignment of error, March-Natali claims that “he voiced

his desire to represent himself and there was never a colloquy by the court regarding that

issue.” Brief of Defendant-Appellant at 9, citing Faretta v. California, 422 U.S. 806, 95

S.Ct. 2525, 45 L.Ed.2d 562 (1975).

Case No. 2022-T-0022 {¶13} “The Sixth Amendment, as made applicable to the states by the Fourteenth

Amendment, guarantees that a defendant in a state criminal trial has an independent

constitutional right of self-representation and that he may proceed to defend himself

without counsel when he voluntarily, and knowingly and intelligently elects to do so.”

State v. Gibson, 45 Ohio St.2d 266, 345 N.E.2d 399 (1976), paragraph one of the

syllabus; Faretta at 819 (the Sixth Amendment “grants to the accused personally the right

to make his defense”); Ohio Constitution, Article I, Section 10 (“[i]n any trial, in any court,

the party accused shall be allowed to appear and defend in person and with counsel”).

{¶14} A defendant must explicitly and unequivocally invoke his right to self-

representation before a court is obligated to consider whether the defendant may waive

his right to representation by counsel. State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-

3751, 772 N.E.2d 81, ¶ 39; State v. Obermiller, 147 Ohio St.3d 175, 2016-Ohio-1594, 63

N.E.3d 93, ¶ 30 (“a defendant’s unambiguous assertion of the right to self-representation

triggers a trial court’s duty to conduct the Faretta inquiries to establish that the defendant

is knowingly and voluntarily waiving his constitutional right to counsel”).

{¶15} Where the right to self-representation is invoked after the commencement

of trial, “the denial of the right is reviewed under the abuse of discretion standard.” State

v. Struble, 11th Dist. Lake No. 2016-L-108, 2017-Ohio-9326, ¶ 35.

{¶16} In the present case, March-Natali never explicitly or unequivocally asserted

his right to self-representation and, therefore, he waived rather than was denied the right.

The nearest thing to the assertion of the right to self-representation in the record is the

following from the beginning of the bench trial:

The Court: And the defense ready to proceed?

Case No. 2022-T-0022 Mr. Zeigler: Yes, Your Honor.

March-Natali: Yes.

The Court: Any opening statement?

The Court: Your attorney is talking for you.

March-Natali: Well, I - -

The Court: If you want to talk, Ben, I’ll ask you to speak. Okay?

[Prosecutor begins making his opening statement.]

The Court: Wait a minute. Wait a minute. There’s a problem, Ben?

March-Natali: Well, I was just conversing with my attorney.

The Court: Yeah.

March-Natali: And he started talking.

The Court: Well, I asked him to start talking. I asked you to stop talking.

March-Natali: Oh, I didn’t hear you.

The Court: Okay. The trial is on now. You’re going to be talking - - Mr. Zeigler is going to be - - he’s representing you. We’ve done this a long time ago. You’ve had prior - - counsel withdrew. Okay. If you have an issue, you can write stuff down for him, but I can’t hear both people at the same time.

March-Natali: All right.

***

Mr. Ziegler: We would move to dismiss any tapes of the - - the videotape - - at the store. It is not offered as evidence. And any audiotape regarding any phone calls are not offered. We move to dismiss for lack of evidence.

March-Natali: It’s all hearsay. 5

Case No. 2022-T-0022 Mr. Zeiger: Because it’s all hearsay.

The Court: Okay.

March-Natali: I mean, you had the tape.

The Court: Hey, Mr. Natali, I’ve got to tell you, Mr. Ziegler knows the Rules of Evidence and the Rules of Procedure. You really should rely on him when he files a motion and if he’s going to file a motion. I’ve heard you argue motions. I’ve heard him argue motions. I can guarantee you he knows more about it than you do. Okay?

{¶17} The desire to actively participate in one’s own defense does not rise in the

present case to an unambiguous assertion of the right to self-representation. Obermiller

at ¶ 29 (“courts must ‘indulge in every reasonable presumption against waiver’ of the right

to counsel”) (citation omitted).

{¶18} The fourth assignment of error is without merit.

{¶19} In the third assignment of error, March-Natali argues that he was prejudiced

by the joint trial of his Aggravated Menacing charges in Newton Falls Mun. Case No.

CRB-2100476 with a charge of Intimidating a Witness in Newton Falls Mun. Case No.

CRB-2100574.

{¶20} Subsequent to the filing of the Aggravated Menacing charges, March-Natali

was separately charged with Intimidating a Witness wherein it was alleged that he

contacted the Advance Auto Parts and claimed to be a detective in order to learn the

names and addresses of the store clerks involved in the July 14 incident. Trial on the two

sets of charges was originally scheduled on different days. The Intimidating a Witness

trial was rescheduled to the same day as the Aggravated Menacing trial because counsel

Case No. 2022-T-0022 for March-Natali was ill. Counsel was apparently unaware that the separate charges were

then to be tried jointly and moved the court to bifurcate the proceedings at trial. The court

assured counsel that it could “separate the charges and the evidence” and inquired if

there would be any prejudice from the joint trial. Counsel responded, “I would ask the

Court to recess until a later date so that I can fully prepare for the second [Intimidating a

Witness] case as well.” The court denied the request. March-Natali was acquitted of

Intimidating a Witness.

{¶21} “If it appears that a defendant * * * is prejudiced * * * by such joinder for trial

together of indictments, informations or complaints, the court shall order an election or

separate trial of counts, grant a severance of defendants, or provide such other relief as

justice requires.” Crim.R. 14. A trial court’s decision regarding the joinder of offenses is

reviewed for abuse of discretion. State v. Ford, 158 Ohio St.3d 139, 2019-Ohio-4539,

140 N.E.3d 616, ¶ 106.

{¶22} The present case demonstrates neither prejudice nor an abuse of

discretion. In fact, the record (described above) indicates that there was no issue with

joinder per se, but that counsel for March-Natali wished to continue trial on the Intimidating

a Witness charge in order to have additional time to prepare as he did not anticipate it

being tried on the same date as the Aggravated Menacing charges. Inasmuch as March-

Natali was acquitted of the Intimidating a Witness charge, it is difficult to imagine how that

part of the proceeding prejudiced him with respect to the Menacing charges.

{¶23} The third assignment of error is without merit.

Case No. 2022-T-0022 {¶24} Under the second assignment of error, March-Natali contends that trial

counsel was ineffective for failing to request a separation of witnesses, impeach

witnesses, and subpoena video footage of the incident.

{¶25} “Counsel’s performance will not be deemed ineffective unless and until

counsel’s performance is proved to have fallen below an objective standard of reasonable

representation and, in addition, prejudice arises from counsel’s performance.” State v.

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus; State

v. Madrigal, 87 Ohio St.3d 378, 388-389, 721 N.E.2d 52 (2000). With respect to counsel’s

performance, the defendant must demonstrate that “counsel made errors so serious that

counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984). The element of prejudice means “that counsel’s errors were so serious as to

deprive the defendant of a fair trial, a trial whose result is reliable.” Id. “Unless a

defendant makes both showings, it cannot be said that the conviction or death sentence

resulted from a breakdown in the adversary process that renders the result unreliable.”

Id.

{¶26} Trial counsel was not ineffective for failing to request a separation of

witnesses because counsel did, in fact, request and obtain a separation of witnesses:

Mr. Ziegler: Your Honor, I do want to ask for a separation of witnesses in case there’s anybody here who - -

The Court: That’ll be granted. All witnesses will have to separate. Sit out in the hallway. You’re not allowed to discuss the case or the testimony.

{¶27} With respect to the impeachment of witnesses, March-Natali argues Garvey

and Davenport testified at trial that he never brandished the weapon or made direct

Case No. 2022-T-0022 threats. In the police report of the incident, however, it is noted that March-Natali showed

them the gun and threatened to use it. “Failure to point out the inconsistencies in the

testimony of the two store clerks prevented the trier of fact from being able to judge the

credibility of the witnesses.” Brief of Defendant-Appellant at 7.

{¶28} The police report (in the record but not admitted at trial) fails to substantiate

March-Natali’s claims. The written statements by Garvey and Davenport are substantially

consistent with their trial testimony, i.e., that, after refusing to accept the return, March-

Natali raised his shirt exposing the handgun while insisting that they will “take it back.”

Detective Lyden’s narrative provides: “Dispatch advised that a customer, who was in the

store, was yelling at employees and showed them a gun he had in his waistband and

threatened to use it.” This description of March-Natali’s conduct was provided by

dispatch. As to what Lyden was told by Garvey and Davenport, the report states:

Ethan advised me that Benjamin came into the store and asked where the toggle switches were. Ethan advised that he pointed Benjamin in the right direction and then Benjamin wanted to return one. Ethan advised that the packaging to the one Benjamin had was destroyed and he could not produce proof of purchase. Ethan advised that he told Benjamin that he could not return it. Ethan advised that Benjamin became very angry and started cussing at both Ethan and Joshua. Ethan advised that Benjamin stated, “You are going to return this,” as he briefly lifted his shirt, revealing what Ethan described as the pistol grip to a gun. Ethan advised that he was not able to tell if the gun was loaded but was afraid for his life and the life of Joshua. Ethan then provided me a written statement. Joshua gave me the same story as Ethan and also provided a written statement. In Ethan’s statement, he also wrote that Benjamin muttered what he believed to have been “watch out.”

{¶29} The third purported failure of trial counsel was the failure to subpoena video

footage from Advance Auto Parts. At trial, the prosecutor, Detective Lyden, and both

store clerks denied that there were either cameras or video of the incident. March-Natali

Case No. 2022-T-0022 acknowledges this testimony, but “contends that the store did, in fact, have cameras,

contrary to the statements of the store clerks.” In the absence of evidence to support the

contention, however, it is of no consequence.

{¶30} The second assignment of error is without merit.

{¶31} In the fifth assignment of error, March-Natali asserts his due process rights

were violated by the State’s failure to produce and/or preserve the video of the incident

available from Advance Auto Parts: “A video of this incident would have changed the

trajectory of the case, potentially exonerating Defendant.” Brief of Defendant-Appellant

at 10.

{¶32} As noted above, the insistence that video footage exists is not supported by

any evidence in the record and, accordingly, is not grounds for finding error. The fifth

assignment of error is without merit.

{¶33} The first assignment of error purports to challenge the manifest weight of

the evidence, but in substance March-Natali’s position encompasses both the sufficiency

and the manifest weight of the evidence.

{¶34} The question of whether a conviction is supported by sufficient evidence

“invokes a due-process concern and raises the question whether the evidence is legally

sufficient to support the jury verdict as a matter of law.” State v. Clinton, 153 Ohio St.3d

422, 2017-Ohio-9423, 108 N.E.3d 1, ¶ 165; State v. Thompkins, 78 Ohio St.3d 380, 386,

678 N.E.2d 541 (1997) (“a conviction based on legally insufficient evidence constitutes a

denial of due process”). In reviewing the sufficiency of the evidence, “[t]he relevant inquiry

is 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

Case No. 2022-T-0022 a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph two of the syllabus.

{¶35} Whereas “sufficiency of the evidence is a test of adequacy as to whether

the evidence is legally sufficient to support a verdict as a matter of law, * * * weight of

the evidence addresses the evidence’s effect of inducing belief.” State v. Wilson, 113

Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing Thompkins at 386-387.

“[A] reviewing court asks whose evidence is more persuasive—the state’s or the

defendant’s?” Id. An appellate court must consider all the evidence in the record, the

reasonable inferences, the credibility of the witnesses, and whether, “in resolving conflicts

in the evidence, the jury clearly lost its way and created such a manifest miscarriage of

justice that the conviction must be reversed and a new trial ordered.” (Citation

omitted.) Thompkins at 387. “Since there must be sufficient evidence to take a case to

the jury, it follows that ‘a finding that a conviction is supported by the weight of the

evidence necessarily must include a finding of sufficiency.’” (Citation omitted.) State v.

Heald, 11th Dist. Lake Nos. 2021-L-111 and 2021-L-112, 2022-Ohio-2282, ¶ 19.

{¶36} In order to convict March-Natali of Aggravated Menacing, the State was

required by prove, beyond a reasonable doubt, that he “knowingly cause[d] another to

believe that [he] will cause serious physical harm to the person or property of the other

person.” R.C. 2903.21(A).

{¶37} “Aggravated menacing does not * * * require proof that the offender is able

to carry out his threat or that he intends to carry it out or believes himself capable of

carrying it out,” nor does it “require proof that the offender threatened imminent serious

physical harm.” State v. McDonald, 11th Dist. Ashtabula No. 2018-A-0008, 2018-Ohio-

Case No. 2022-T-0022 3845, ¶ 34. “What is necessary to establish the crime of aggravated menacing is the

victim’s subjective belief that the defendant will cause serious physical harm.” (Citation

omitted.) Id. “[A] person can be convicted of aggravated menacing even though the

person has not made any movement toward carrying out the threat.” (Citation omitted.)

{¶38} As to the sufficiency of the evidence, March-Natali notes: “there were no

verbal threats made”; “[t]he only thing Defendant did was lift his shirt”; and “[a]t no time

did Defendant point a gun at anyone or even remove the gun from his person.” Brief of

Defendant-Appellant at 5-6. Contrary to March-Natali’s position, it is well-established that

merely revealing the possession of a firearm, even in the absence of direct or explicit

threats, may be sufficient to sustain an Aggravated Menacing conviction. State v. El-

Hardan, 2d Dist. Montgomery No. 24293, 2011-Ohio-4453, ¶ 43 (“merely displaying a

weapon is enough to support a conviction for Aggravated Menacing when this act causes

the victim to believe that the defendant will cause him serious physical harm”); State v.

Yoder, 6th Dist. Erie No. E-19-031, 2020-Ohio-4546, ¶ 16 (“appellant [was] really

intimidating, shaking, staring, angry, red-faced, and looming over them with a gun in his

waist”); State v. Goodwin, 10th Dist. Franklin Nos. 05AP-267 and 05AP-268, 2006-Ohio-

66, ¶ 25 (“appellant arrived at the Price and Huggard residence, banged on the door,

stood there, and did not respond to Huggard and Price’s invitations for appellant to come

into the house” and, “[t]hen, without talking, appellant lifted his shirt, revealing a firearm,

and then he left”).

{¶39} As to the manifest weight of the evidence, March-Natali argues “there was

no corroborating evidence of the two store clerk’s [sic] testimony, * * * no independent

Case No. 2022-T-0022 witnesses and no physical evidence to support the allegations.” Brief of Defendant-

Appellant at 6.

{¶40} Initially, we note that neither physical nor corroborating evidence is

necessary to sustain a conviction. In re C.S., 10th Dist. Franklin No. 11AP-667, 2012-

Ohio-2988, ¶ 30 (absence of corroborating or physical evidence does not negate witness

testimony). This is particularly true with respect to a crime such as Aggravated Menacing

where the essential act is causing someone to believe something. In the present case,

Garvey’s and Davenport’s testimony was consistent with the other’s testimony and

consistent with what was reported to the police. In some Aggravated Menacing cases,

the failure or delay of the alleged victim to report the menacing conduct has been argued

to be evidence that the victim did not actually fear physical harm. Here, the police were

contacted immediately and the two clerks’ conduct was consistent with their statements

that they felt threatened by March-Natali. We find no cause to overturn the verdict.

{¶41} The first assignment of error is without merit.

{¶42} For the foregoing reasons, March-Natali’s convictions for Aggravated

Menacing are affirmed. Costs to be taxed against the appellant.

THOMAS R. WRIGHT, P.J.,

CYNTHIA WESTCOTT RICE, J.,

concur.

Case No. 2022-T-0022