[Cite as State v. Staton, 2014-Ohio-5131.]
COURT OF APPEALS KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 14CA13 : DARREN STATON : : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Mount Vernon Municipal Court, Case No. 13CRB928
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: November 13, 2014
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
P. ROBERT BROEREN, JR. JOEL R. ROVITO MOUNT VERNON LAW DIRECTOR 7538 Slate Ridge Blvd. BRITTANY A. WHITNEY Reynoldsburg, OH 43068 5 North Gay St., Suite 222 Mount Vernon, OH 43050 Knox County, Case No. 14CA13 2
Delaney, J.
{¶1} Appellant Darren Staton appeals the April 30, 2014 Judgment Entry of the
Mount Vernon Municipal Court convicting and sentencing him upon one count of
menacing. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} Delbert Hawk and Sylvia Hawk were once married and have two children
together. They are now divorced and, at the time of this incident, were involved in
custody proceedings. Appellant is Sylvia Hawk’s boyfriend. Jennifer Hawk is Delbert’s
new wife.
{¶3} On August 12, 2013, the parties complained to the Knox County Sheriff’s
Department about threatening texts made against each other. Deputy Selby did not
take a formal report but told the parties to stay away from each other.
{¶4} On August 14, 2013, Jennifer contacted Deputy Selby about an incident
which occurred at a high school football scrimmage. Selby took a report, gathered
witness statements, and forwarded the matter to the law director’s office for review.
{¶5} The following evidence is adduced from appellant’s trial to the court.
{¶6} The parties were at a high school football scrimmage in Howard, Ohio.
Families and children were present. Delbert and Jennifer were seated four or five rows
up from the bottom of the bleachers with Delbert and Sylvia’s two children. Appellant
walked past the family along the bottom of the bleachers and said to Delbert several
times, “I’m going to f-ing smash you.”
{¶7} Delbert and Jennifer testified that upon leaving the game, they discovered
someone wrote “Delbert is gay” in the dirt on Delbert’s truck. Knox County, Case No. 14CA13 3
{¶8} A witness and her family were sitting near the bottom of the bleachers and
heard appellant’s statements; they took note of the language because they found the
wording “I’m going to smash you” amusing. The witness turned around and realized
appellant was threatening Delbert. The witness did not hear Delbert say anything to
appellant.
{¶9} Testifying on appellant’s behalf, Sylvia Hawks stated she and appellant
walked past Delbert in the bleachers. Delbert called appellant an “a-hole” and appellant
stated “If you mess with me, I’m going to smash you.”
{¶10} Appellant testified at trial. He said Delbert was trying to belittle him and
make him look like a fool. When Delbert called him a “f-ing a-hole,” appellant admittedly
responded “If you mess with me, I’ll smash you.”
{¶11} Appellant and Sylvia both denied writing “Delbert is gay” in the dirt on
Delbert’s truck and appellant described this act as “immature.”
{¶12} Appellant was charged by criminal complaint with one count of menacing
pursuant to R.C. 2903.22(A), a misdemeanor of the fourth degree. Appellant entered a
plea of not guilty and the case proceeded to bench trial. The trial court found appellant
guilty as charged and sentenced him to a jail term of 30 days with all but two suspended
on the conditions that he pay a fine and court costs, have no similar offenses for 2
years, and successfully completes an anger-management program.
{¶13} Appellant now appeals from the judgment entry of his conviction and
sentence.
{¶14} Appellant raises two assignments of error: Knox County, Case No. 14CA13 4
ASSIGNMENTS OF ERROR
{¶15} “I. THE EVIDENCE IS INSUFFICIENT TO SUPPORT APPELLANT’S
CONVICTION FOR MENACING.”
{¶16} “II. APPELLANT’S CONVICTION FOR MENACING IS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.”
ANALYSIS
{¶17} Appellant’s two assignments of error are related and will be considered
together. He argues his menacing conviction is against the manifest weight and
sufficiency of the evidence. We disagree.
{¶18} The legal concepts of sufficiency of the evidence and weight of the
evidence are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio
St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard
of review for a challenge to the sufficiency of the evidence is set forth in State v. Jenks,
61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which
the Ohio Supreme Court held, “An appellate court’s function when reviewing the
sufficiency of the evidence to support a criminal conviction is to examine the evidence
admitted at trial to determine whether such evidence, if believed, would convince the
average mind of the defendant’s guilt beyond a reasonable doubt. The 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
a reasonable doubt.”
{¶19} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing Knox County, Case No. 14CA13 5
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 overturned and a new trial ordered.” State v. Thompkins,
supra, 78 Ohio St.3d at 387. Reversing a conviction as being against the manifest
weight of the evidence and ordering a new trial should be reserved for only the
“exceptional case in which the evidence weighs heavily against the conviction.” Id.
{¶20} Appellant was found guilty of one count of menacing. R.C. 2903.22(A)
states:
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. In addition to any other basis for the
other person's belief 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, 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.
{¶21} Reviewing the evidence in the light most favorable to appellee we find
every element of menacing. Appellant argues the deputy’s investigation of the incident
was insufficient, the unbiased witness could not identify appellant, and the Hawkses’ Knox County, Case No. 14CA13 6
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[Cite as State v. Staton, 2014-Ohio-5131.]
COURT OF APPEALS KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 14CA13 : DARREN STATON : : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Mount Vernon Municipal Court, Case No. 13CRB928
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: November 13, 2014
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
P. ROBERT BROEREN, JR. JOEL R. ROVITO MOUNT VERNON LAW DIRECTOR 7538 Slate Ridge Blvd. BRITTANY A. WHITNEY Reynoldsburg, OH 43068 5 North Gay St., Suite 222 Mount Vernon, OH 43050 Knox County, Case No. 14CA13 2
Delaney, J.
{¶1} Appellant Darren Staton appeals the April 30, 2014 Judgment Entry of the
Mount Vernon Municipal Court convicting and sentencing him upon one count of
menacing. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} Delbert Hawk and Sylvia Hawk were once married and have two children
together. They are now divorced and, at the time of this incident, were involved in
custody proceedings. Appellant is Sylvia Hawk’s boyfriend. Jennifer Hawk is Delbert’s
new wife.
{¶3} On August 12, 2013, the parties complained to the Knox County Sheriff’s
Department about threatening texts made against each other. Deputy Selby did not
take a formal report but told the parties to stay away from each other.
{¶4} On August 14, 2013, Jennifer contacted Deputy Selby about an incident
which occurred at a high school football scrimmage. Selby took a report, gathered
witness statements, and forwarded the matter to the law director’s office for review.
{¶5} The following evidence is adduced from appellant’s trial to the court.
{¶6} The parties were at a high school football scrimmage in Howard, Ohio.
Families and children were present. Delbert and Jennifer were seated four or five rows
up from the bottom of the bleachers with Delbert and Sylvia’s two children. Appellant
walked past the family along the bottom of the bleachers and said to Delbert several
times, “I’m going to f-ing smash you.”
{¶7} Delbert and Jennifer testified that upon leaving the game, they discovered
someone wrote “Delbert is gay” in the dirt on Delbert’s truck. Knox County, Case No. 14CA13 3
{¶8} A witness and her family were sitting near the bottom of the bleachers and
heard appellant’s statements; they took note of the language because they found the
wording “I’m going to smash you” amusing. The witness turned around and realized
appellant was threatening Delbert. The witness did not hear Delbert say anything to
appellant.
{¶9} Testifying on appellant’s behalf, Sylvia Hawks stated she and appellant
walked past Delbert in the bleachers. Delbert called appellant an “a-hole” and appellant
stated “If you mess with me, I’m going to smash you.”
{¶10} Appellant testified at trial. He said Delbert was trying to belittle him and
make him look like a fool. When Delbert called him a “f-ing a-hole,” appellant admittedly
responded “If you mess with me, I’ll smash you.”
{¶11} Appellant and Sylvia both denied writing “Delbert is gay” in the dirt on
Delbert’s truck and appellant described this act as “immature.”
{¶12} Appellant was charged by criminal complaint with one count of menacing
pursuant to R.C. 2903.22(A), a misdemeanor of the fourth degree. Appellant entered a
plea of not guilty and the case proceeded to bench trial. The trial court found appellant
guilty as charged and sentenced him to a jail term of 30 days with all but two suspended
on the conditions that he pay a fine and court costs, have no similar offenses for 2
years, and successfully completes an anger-management program.
{¶13} Appellant now appeals from the judgment entry of his conviction and
sentence.
{¶14} Appellant raises two assignments of error: Knox County, Case No. 14CA13 4
ASSIGNMENTS OF ERROR
{¶15} “I. THE EVIDENCE IS INSUFFICIENT TO SUPPORT APPELLANT’S
CONVICTION FOR MENACING.”
{¶16} “II. APPELLANT’S CONVICTION FOR MENACING IS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.”
ANALYSIS
{¶17} Appellant’s two assignments of error are related and will be considered
together. He argues his menacing conviction is against the manifest weight and
sufficiency of the evidence. We disagree.
{¶18} The legal concepts of sufficiency of the evidence and weight of the
evidence are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio
St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard
of review for a challenge to the sufficiency of the evidence is set forth in State v. Jenks,
61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which
the Ohio Supreme Court held, “An appellate court’s function when reviewing the
sufficiency of the evidence to support a criminal conviction is to examine the evidence
admitted at trial to determine whether such evidence, if believed, would convince the
average mind of the defendant’s guilt beyond a reasonable doubt. The 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
a reasonable doubt.”
{¶19} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing Knox County, Case No. 14CA13 5
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 overturned and a new trial ordered.” State v. Thompkins,
supra, 78 Ohio St.3d at 387. Reversing a conviction as being against the manifest
weight of the evidence and ordering a new trial should be reserved for only the
“exceptional case in which the evidence weighs heavily against the conviction.” Id.
{¶20} Appellant was found guilty of one count of menacing. R.C. 2903.22(A)
states:
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. In addition to any other basis for the
other person's belief 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, 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.
{¶21} Reviewing the evidence in the light most favorable to appellee we find
every element of menacing. Appellant argues the deputy’s investigation of the incident
was insufficient, the unbiased witness could not identify appellant, and the Hawkses’ Knox County, Case No. 14CA13 6
testimony about the details of the incident was inconsistent. We note, however,
appellant admitted making the statement, “If you mess with me, I’ll smash you.” This
statement was corroborated by appellant’s wife. Appellee’s witnesses testified to the
same threat, albeit without the conditional language.
{¶22} The minor deficiencies in the evidence appellant points to go to the
credibility of the witnesses, which was for the trial court to resolve. The weight of the
evidence and the credibility of the witnesses are determined by the trier of fact. State v.
Yarbrough, 95 Ohio St.3d 227, 231, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79. We find
appellant’s menacing conviction is supported by sufficient evidence and is not against
the manifest weight of the evidence.
{¶23} Any rational trier of fact could have found the essential elements of
menacing proven beyond a reasonable doubt. Nor is this the exceptional case in which
the evidence weighs heavily against a conviction. Appellant’s two assignments of error
are therefore overruled. Knox County, Case No. 14CA13 7
CONCLUSION
{¶24} Appellant’s two assignments of error are overruled and the judgment of
the Mount Vernon Municipal Court is affirmed.
By: Delaney, J. and
Hoffman, P.J.
Farmer, J., concur.