State v. Nixon , 2014 Ohio 4303 ( 2014 )

[Cite as State v. Nixon, 2014-Ohio-4303.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2013-P-0098
- vs - :
DAVID A. NIXON, :
Defendant-Appellant. :
Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No.
13 CRB 2123.
Judgment: Affirmed.
Victor V. Vigluicci, Portage County Prosecutor, and Kristina Drnjevich, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Adam M. Van Ho, 137 South Main Street, #201, Akron, OH 44308 (For Defendant-
Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, David A. Nixon, appeals from the judgment of the Portage
County Municipal Court, Ravenna Division, convicting him of aggravated menacing. We
affirm the trial court’s judgment.
{¶2} In early March 2013, appellant was an inmate at the Portage County Jail.
He was housed in a “pod” supervised by Corrections Officer Sonny Jones. On March
12, 2013, Detective Elizabeth Ittel noticed an outgoing letter from appellant, addressed
in blue ink. Inmates are not permitted to have pens, only pencils. She alerted Officer
Jones and his supervisor, Sergeant Robert Smysek. Officer Jones confronted
appellant, who eventually turned over the pen, after initially denying he possessed it.
{¶3} The next day, appellant placed a series of phone calls, evidently to his
girlfriend, Richelle Horvath, an employee of Ravenna City schools. Ms. Horvath’s son,
J., attends the same school as Officer Jones’ son, S. Officer Jones is a volunteer coach
at the school, and had coached both boys. Signs are posted in the jail that phone calls
are recorded, and may be monitored; a voice message informs inmates of the same
before their calls are placed.
{¶4} The recording of the initial call by appellant was excluded from evidence.
In the second call, appellant asked the woman if she knew which grade S. attended.
She replied he was a year behind her son. Appellant went on to aver his hope the
sheriff’s department was recording and listening to the phone call, and that he had
chosen to use the phone nearest to Officer Jones’ desk so the officer would hear. He
further stated he intended to “kick [Officer Jones’] ass” at a school football game upon
his release from jail.1
{¶5} That same day, Detective Ittel opened another outgoing letter from
appellant. Although it was addressed in pencil, she discovered the letter was written in
black ink. The detective informed Officer Jones, who asked appellant to turn the pen
over to him. Again, appellant initially denied having any pen; he eventually surrendered
the black pen, however.
1. Certain portions of the recordings played to the jury were muted, on the state’s motion, to prevent
potential prior bad acts evidence from being introduced against appellant.
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{¶6} As punishment, Officer Jones placed appellant on lock down. One
privilege lost by inmates during lock down is the right to place phone calls.
Nevertheless, appellant managed to place a third phone call to Horvath. During that
call, he advised Horvath he was in lock down because of Officer Jones. He further
explained that Sergeant Symsek informed him that Officer Jones was intimidated. He
further requested that Horvath have her son, J., contact a third boy at the middle school,
R. R. is older than J. and S., and had also been coached by Officer Jones. R. is
physically mature, standing six feet tall and weighing more than 200 pounds. Appellant
asked that J. tell R. he would pay the juvenile $50 for putting “that son of a bitch in
intensive care and you know who I am talking about. I swear to God, I’ll send fifty bucks
off my books if he goes to school and just dusts that son of a bitch. * * * so I can say
now mother f***er every week your kid is getting that shit.” S. was not specifically
mentioned.
{¶7} Two days later, Detective Ittel reviewed appellant’s recent telephone
recordings. After listening to the phone calls appellant made on March 13, 2013, the
detective immediately informed her supervisor, Lieutenant Gregory Johnson. He
listened to the calls, then informed Sergeant Symsek. It was Officer Jones’ day off:
Sergeant Symsek telephoned him. Officer Jones and his wife immediately went to the
middle school and spoke with the principal. Officer Jones testified that his wife was
near hysteria. Later, Lieutenant Jones, Detective Ittel, and Detective Burns visited the
school.
{¶8} On August 5, 2013, appellant was charged with aggravated menacing, in
violation of R.C. 2903.21, a misdemeanor of the first degree. He pleaded not guilty and
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moved in limine to exclude prior bad acts, his criminal record, and the first two
recordings. The trial court granted the motion regarding the recording of the first phone
call. The case came on for jury trial on October 21, 2013, and the jury returned a verdict
of guilty. On October 24, 2013, the trial court sentenced appellant to the maximum term
of 180 days imprisonment and court costs. Appellant’s sentence was stayed pending
appeal.
{¶9} Appellant assigns four errors for this court’s review. His first two
assignments of error shall be addressed together. They read respectively:
{¶10} “[1.] Appellant’s conviction for aggravated menacing is unconstitutional as
they [sic] are against the manifest weight of the evidence and is based on insufficient
evidence, in violation of the Fifth and Fourteenth Amendments to the United States
Constitution and Article One, Sections Ten and Sixteen of the Ohio Constitution.”
{¶11} “[2.] The trial court erred when it denied appellant’s motion for acquittal.”
{¶12} In a criminal appeal, a verdict may be overturned if it is against the
manifest weight of the evidence or because there is insufficient evidence to support the
conviction. In the former, an appellate court acts as a “thirteenth juror” to determine
whether the trier of fact 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, 78
Ohio St.3d 380, 387(1997). In the latter, the court must determine whether the evidence
submitted is legally sufficient to support all of the elements of the offense charged. Id. at
386-387. The test is, viewing the evidence in a light most favorable to the prosecution,
could any rational jury have found the essential elements of the crime proven beyond a
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reasonable doubt? Id. at 390 (Cook, J., concurring); State v. Jenks, 61 Ohio St.3d 259(1991), paragraph two of the syllabus.
{¶13} Appellant challenges the weight and sufficiency of the evidence upon
which the jury’s guilty verdict was premised. Appellant was convicted of aggravated
menacing, in violation of R.C. 2903.21(A). That statute provides:
{¶14} “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 person's immediate family.”
{¶15} Pursuant to R.C. 2901.22(B), “[a] person acts knowingly regardless of his
purpose, when he is aware that his conduct will probably cause a certain result or will
probably be of a certain nature. A person has knowledge of circumstances when he is
aware that such circumstances probably exist.”
{¶16} Appellant contends his conviction lacks evidentiary support because he
did not make threats directly to Officer Jones or a member of the officer’s family. In
support, appellant cites State v. Chmiel, 11th Dist. Lake No. 96-L-173, 1997 Ohio App.
LEXIS 4364 (Sept. 26, 1997). In Chmiel, this court reversed an aggravated menacing
conviction because the defendant did not engage in threatening behaviors toward the
victim. Her thoughts were discovered when the defendant sought assistance from a
mental health counselor. This court held that without a threat made known to the
potential victim or her family, a key element of the aggravated menacing statute was
missing. Id. at *6-*7. This court underscored that “thoughts alone” are insufficient for a
conviction. Id. at *7.
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{¶17} Appellant also directs this court’s attention to the Seventh Appellate
District’s opinion in State v. Richard, 129 Ohio App.3d 556 (7th Dist.1998). In that case,
the defendant’s “threat” was made to a county child support agent under circumstances
where he was discussing his tax refund, which was intercepted by county services for
child support arrearages. He grew very upset and asked the agent, “How he would be
able to afford it all?” He then proceeded to make the statement, “I should just kill her,
maybe that will end it all.” The agent reported this statement to her supervisor, who then
called the police. Thus, the Seventh District Court of Appeals reversed the defendant’s
conviction for menacing since the alleged victim was neither the person to whom he
addressed the statement nor a close relative of the victim. Id. at 561.
{¶18} In the case sub judice, appellant did not make a direct threat to Officer
Jones or a member of his family. This matter is different from both Chmiel and Richard,
however. Appellant’s initial threat was made (1) purposely close to Officer Jones’ desk
and (2) on a phone line that he knew was recorded and monitored. His second threat,
leveled at Officer Jones’ son, was made on the same recorded phone line and after
appellant was advised that Officer Jones had been “intimidated” by appellant. Given
this evidence, even though the threats were not made directly to Officer Jones or his
family, they were made under circumstances that placed appellant on reasonable notice
that his threats would probably reach Officer Jones or his family and cause these
individuals to believe appellant would cause them serious physical harm. Both Chmiel
and Richard are distinguishable from the instant matter in this regard.
{¶19} Because there was sufficient, credible evidence upon which the jury could
premise its verdict that appellant knowingly caused Officer Jones’ or his family to
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believe appellant would cause them serious physical harm, the verdict is consistent with
both the sufficiency and the weight of the evidence. By implication, the trial court did
not err in denying appellant’s Crim.R. 29 motion for acquittal.
{¶20} Appellant’s first and second assignments of error lack merit.
{¶21} Appellant’s third assignment of error provides:
{¶22} “The trial court violated appellant’s rights under the Sixth Amendment of
the United States Constitution and Article One, Section Ten of the Ohio Constitution and
Rule 43 of the Ohio Rules of Criminal Procedure when the court conducted a pretrial
hearing without the appellant being present.”
{¶23} After empanelling the jury, but prior to opening statements, the trial court
conducted a final pretrial with counsel. At the start, appellant’s counsel expressed the
desire that his client be present to avoid creating an appealable issue due to his
absence. The trial court acknowledged there might be a problem if appellant was not
present at the pretrial, then asked if counsel could discuss some issues without his
presence. Appellant’s counsel acquiesced. Shortly thereafter, the discussion turned to
the witnesses the state would present, and the motions in limine regarding the first two
phone calls of March 13, 2013, filed by appellant’s counsel. Counsel again requested
appellant’s presence; the court again acknowledged appellant’s absence might create
an issue on appeal. The discussions continued, however, without appellant’s presence.
{¶24} During the discussion, the state maintained the recording of the first two
phone calls was necessary to establish appellant’s animus against Officer Jones, and
that S. was the intended target of the threat made in the third call. Appellant’s counsel
insisted that only the third call was relevant to the state’s case since it contained the
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actual threat. The trial court granted the motion in limine as it related to the recording of
the first call, but not the second.
{¶25} During the course of the pretrial, other issues discussed were ways and
means of keeping out prior bad acts evidence; whether the trial court would instruct on
lesser included offenses; and matters relating to plea negotiations.
{¶26} Crim.R. 43(A) provides, in pertinent part: “(1) Except as provided in Rule
10 of these rules and division (A)(2) of this rule, the defendant must be physically
present at every stage of the criminal proceeding and trial, including the impaneling of
the jury, the return of the verdict, and the imposition of sentence, except as otherwise
provided by these rules.”
{¶27} “An accused has a fundamental right to be present at all critical stages of
his criminal trial.” State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-2426, ¶100. “An
accused’s absence, however, does not necessarily result in prejudicial or constitutional
error.” State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, ¶90. “[T]he presence of a
defendant is a condition of due process to the extent that a fair and just hearing would
be thwarted by his absence, and to that extent only.” (Emphasis sic.) Hale at ¶100,
quoting Snyder v. Massachusetts, 291 U.S. 97, 107-108 (1934), overruled on other
grounds by Malloy v. Hogan, 378 U.S. 1, 17, (1964). The focus of the inquiry is whether
his presence has a “reasonably substantial” relationship to “the fullness of his
opportunity to defend against the charge.” Id., quoting Snyder at 105-106.
{¶28} Although important issues were ruled upon and discussed during the
pretrial in question, the matters at issue were legal in nature; defense counsel advanced
arguments in appellant’s defense and, as a result, appellant, even had he been present,
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would not have meaningfully contributed to the issues before the court. The presence
of appellant’s counsel ensured that appellant’s right to due process was protected, and
there is nothing to indicate the fairness of the proceedings were undermined by
appellant’s absence. We therefore hold appellant’s constitutional rights were not
violated when the pretrial was held outside his presence.
{¶29} Appellant’s third assignment of error is without merit.
{¶30} Appellant’s fourth assignment of error provides:
{¶31} “The trial court erred when it admitted audio recordings as business
records without the proper foundation being laid in violation of Rules 803 and 901 of the
Ohio Rules of Evidence.
{¶32} Appellant contends the state failed to lay a foundation under Evid.R.
803(6) that the phone recordings introduced into evidence were business records; and
that it failed to authenticate the phone calls under Evid.R. 901. We do not agree.
{¶33} Evid.R. 901 governs the authentication of demonstrative evidence such
as recordings of telephone conversations. The threshold for admission is quite low as
the proponent need only submit “evidence sufficient to support a finding that the matter
in question is what its proponent claims.” Evid.R. 901(A). This means, “‘the proponent
must present foundational evidence that is sufficient to constitute a rational basis for a
jury to decide that the primary evidence is what its proponent claims it to be.’” State v.
Tyler, 196 Ohio App.3d 443, 2011-Ohio-3937, ¶25 (4th Dist.), citing State v. Payton, 4th
Dist. Ross No. 01CA2606, 2002-Ohio-508. The trial court possesses broad discretion
in the admission of tape recordings. State v. Rogan, 94 Ohio App.3d 140, 149 (2d
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Dist.1994). To be admissible, the recording must be “authentic, accurate, and
trustworthy.” State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, ¶109.
{¶34} In the underlying matter, Lieutenant Johnson testified that he listened to
both jail calls. The lieutenant recognized appellant as the caller of both calls from prior
contact with him and a familiarity with appellant’s voice. Lieutenant Johnson further
testified each inmate receives a personal identification number (“PIN”), usually his or
her social security number. The PIN is the number used to access the jail’s phone
system. Lieutenant Johnson testified that the PIN used for the calls at issue was
appellant’s social security number. Further, the company responsible for the recording
of the jail calls performed monthly maintenance on the jail’s system.
{¶35} Detective Ittel also testified that an inmate’s jail calls could be tracked
“[t]hrough their names or their - - what they use as their PIN number, which is their
social security number, or through a phone number that they’re calling.” The detective
described the system used by the jail and specifically referenced appellant’s phone log,
which identified the call placed at 16:54 on March 13, 2013. The detective retrieved the
calls by typing appellant’s name into the program. Detective Ittel listened to both calls
initially, on March 15, 2013, and testified that the recordings truly and accurately
reflected the phone calls that she heard on that date.
{¶36} The foundation evidence was “sufficient to support a finding that the
matter in question is what its proponent claims.” Evid.R. 901(A). Moreover, the
surrounding testimony sufficed to establish that the evidence was “authentic, accurate,
and trustworthy.” We therefore hold the trial court did not abuse its discretion in
admitting the recordings.
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{¶37} Appellant’s final assignment of error lacks merit.
{¶38} For the reasons discussed in this opinion, the judgment of conviction
entered by the Portage County Municipal Court, Ravenna Division, is affirmed.
TIMOTHY P. CANNON, P.J., concurs,
COLLEEN MARY O’TOOLE, J., concurs in part and dissents in part, with a Concurring
and Dissenting Opinion.
_______________________
COLLEEN MARY O’TOOLE, J., concurs in part and dissents in part, with a Concurring
and Dissenting Opinion.
{¶39} I concur in the majority’s disposition of the third and fourth assignments of
error. However, I find the state failed to provide sufficient evidence appellant acted
knowingly in causing Officer Jones to believe he would harm the officer’s son, which is
an element of the offence of aggravated menacing. R.C. 2903.21. Consequently, I
would reverse based on the first and second assignments of error.
{¶40} “A person acts knowingly, regardless of purpose, when she is aware that
her conduct will probably cause a certain result or will probably be of a certain nature.
State v. Miller, 96 Ohio St. 3d 384, 2002-Ohio-4931, at ¶31, * * *. ‘“Probably” is defined
as “more likely than not” or a greater than fifty percent chance.’ Miller v. Paulson (1994),
97 Ohio App.3d 217, 222, * * *.” (Parallel citations omitted.) State v. Fussell, 8th Dist.
Cuyahoga No. 87739, 2006-Ohio-6438, ¶42.
{¶41} In this case, the state failed to prove that appellant “probably” knew his
conduct of making threatening remarks about Officer Jones’ son to his girlfriend over
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the jail telephones would result in Officer Jones discovering the conduct. The record
shows that all sheriffs’ detectives can monitor inmate phone calls. Detective Ittel chose
to listen to the recordings of appellant’s calls. But nothing in her testimony indicates
there is any set policy regarding when or whether she is to listen to the recordings made
of inmates’ phone calls. Her specific testimony includes: “I currently review inmate mail.
Not all. Some. And I also review some of the calls for the inmates.” Regarding when
she reviews mail, she testified that it is done “based on evidence that may be written
about or in letters or subjects that may or may not pose a threat to the jail or the staff.”
In this case, she reviewed appellant’s letters of March 12, 2013 and March 13, 2013,
because they indicated he possessed pens, which are contraband. And she decided to
listen to the recordings of his recent phone calls two days later, March 15, 2013,
because of the pen infractions. Thus, the record essentially establishes that whether or
not recordings of an inmate’s phone calls are reviewed is discretionary. I respectfully
conclude this is insufficient evidence to show appellant probably should have known his
calls to Ms. Horvath would be reviewed, and the information given to Officer Jones. It
establishes a possibility, not probability.
{¶42} The conviction in this case was based on insufficient evidence.
{¶43} I respectfully concur in part and dissent in part.
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