State v. Beckwith , 2017 Ohio 4298 ( 2017 )

[Cite as State v. Beckwith, 2017-Ohio-4298.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104683
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
GREGORY E. BECKWITH
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-16-603321-A and CR-16-604159-A
BEFORE: McCormack, J., Keough, A.J., and Stewart, J.
RELEASED AND JOURNALIZED: June 15, 2017
FOR APPELLANT
Gregory E. Beckwith, pro se
Inmate No. A683-398
Marion Correctional Institution
P.O. Box 57
Marion, OH 43302
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Anne Kiran Mikhaiel
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:
{¶1} Defendant-appellant Gregory Beckwith appeals from the judgment of the
Cuyahoga County Court of Common Pleas in two separate trial court cases. In
Cuyahoga C.P. No. CR-16-604159-A, he was convicted of menacing by stalking and
related offenses. In Cuyahoga C.P. No. CR-16-603321-A, he was convicted of failure to
verify his address as a sex offender. After a review of the record and applicable law, we
affirm his convictions in CR-604159, but reverse his sentence in CR-603321 and remand
the matter for further proceedings consistent with this opinion. In the following, we
address these two cases in turn.1
I. CR-604159 (Menacing by Stalking)
{¶2} In CR-604159, the victim of the stalking case was a patient services
representative in the Orthopedic Clinic at MetroHealth Hospital. For several months
appellant would sit on a bench near her work area and stared at her while she worked.
On one of these occasions he exposed his penis and masturbated. Appellant was
charged with one count of burglary (Count 1), two counts of menacing by stalking
(Counts 2 and 3), and one count of public indecency (Count 4). Count 2 contained a
Although Beckwith filed a notice of appeal from both lower court cases, his appellate counsel
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raises one assignment of error regarding the registration case (CR-603321) but did not raise any
assignment of error regarding the stalking case (CR-604159). Beckwith was unhappy with counsel’s
performance and subsequently terminated her. This court allowed counsel to withdraw. With this
court’s permission, Beckwith filed a supplemental brief pro se, raising one assignment of error in
CR-604159. We address both assignments of error raised.
furthermore specification of prior conviction of menacing by stalking; Count 3 contained
a furthermore specification of trespassing.
{¶3} This stalking matter was tried to the bench. The victim testified that,
beginning in June 2014, she started to notice a man, who always wore the same clothes —
a black T-shirt, black shorts, Nike sandals or flip-flops, sitting on the bench in the hallway
outside her desk area. Her desk is separated from the hallway by a glass window.
Several times a day every day, appellant would be sitting on the bench staring at her. On
August 1, 2014, a Friday, as she was closing the clinic by herself around 5:00 p.m., she
looked out to the hallway and saw appellant sitting on the bench staring inside the clinic.
When she glanced over, he reached inside his pants, pulled out his penis, and started to
masturbate. Startled, she immediately called her supervisor. When the supervisor
came over and picked up the phone to call the police, appellant quickly got up and left.
{¶4} The victim testified she was “scared” and “terrified.” She asked her sister,
who also worked at MetroHealth, to accompany her to her car. As they were walking
out, she saw appellant passing by her. Shaking, she kept walking and looking behind
her to make sure he was not following her to her car. She was so “creeped out” by the
incident that she did not leave her house the entire weekend. On Monday, August 4,
when she went back to work, appellant appeared again on the bench at 10:00 a.m., staring
at her. “Shaken” and “scared,” she alerted a coworker. When the coworker picked up
the phone to call the police, appellant immediately left.
{¶5} A coworker testified that, prior to the August 1 incident, the victim pointed
appellant out to her and told her “[t]hat’s the man if anything happens.” Two other
coworkers testified about an event on September 3, 2014, which led to appellant’s
apprehension. Around the time when the victim was about to come to work and clock
in, they saw appellant sitting on a bench next to the time clock located in the hallway
around the corner from the Orthopedic Clinic. They alerted a MetroHealth police officer
of appellant’s presence. When the officer approached, appellant quickly got up and
walked away. The officer chased him and eventually apprehended him.
{¶6} The victim testified that, after the incident, it was “terrifying” just to look at
the bench in the hallway from her desk. She developed sleep issues and once had a
haunting nightmare where appellant was just sitting on a bench. She testified that two
years later she was still frightened just from being in the courtroom with appellant.
{¶7} The trial court found appellant not guilty of burglary (Count 1), but guilty of
Count 2 (menacing by stalking with the furthermore specification of prior conviction) and
Count 4 (public indecency). Regarding Count 3 (menacing by stalking with the
furthermore specification of trespassing), the court found him guilty of menacing by
stalking but found the state failed to prove the furthermore specification of trespassing.
Appellant was sentenced to 18 months on Count 2, 180 days on Count 3, and 60 days on
Count 4, to run concurrently.
Appeal: Sufficiency of Evidence
{¶8} Appellant raises a single assignment of error in CR-604159, arguing the
state failed to present sufficient evidence to prove the element of the mental state of
“knowingly” and the element of mental distress required for a conviction of menacing by
stalking.
{¶9} When considering a challenge to the sufficiency of the evidence, a reviewing
court examines the evidence admitted at trial and determines whether such evidence, if
believed, would convince the average mind of the defendant’s guilt beyond a reasonable
doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the
syllabus. “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.” Id. A reviewing court is
not to assess “whether the state’s evidence is to be believed, but whether, if believed, the
evidence against a defendant would support a conviction.” State v. Thompkins, 78 Ohio
St.3d 380, 390, 678 N.E.2d 541 (1997).
{¶10} R.C. 2903.211(A)(1) defines the offense of menacing by stalking. It states:
(1) No person by engaging in a pattern of conduct shall knowingly cause
another person to believe that the offender will cause physical harm to the
other person or a family or household member of the other person or cause
mental distress to the other person or a family or household member of the
other person. * * *
R.C. 2901.22(B) defines “knowingly” as follows:
A person acts knowingly, regardless of purpose, when the person is aware
that the person’s conduct will probably cause a certain result or will
probably be of a certain nature. A person has knowledge of circumstances
when the person is aware that such circumstances probably exist.
{¶11} “Sufficient evidence supports the ‘knowingly’ element of menacing by
stalking if the evidence allows the trier of fact to reasonably conclude that the defendant
was aware that his conduct would probably cause the victim to believe that the defendant
will cause physical harm or mental distress to the victim.” State v. Bone, 10th Dist.
Franklin No. 05AP-565, 2006-Ohio-3809, ¶ 33, citing State v. Dario, 106 Ohio App.3d
232, 665 N.E.2d 759 (1st Dist.1995). Here, the victim’s testimony was sufficient to
allow the trier of fact to determine that appellant acted knowingly under R.C. 2901.22(B).
The testimony showed that appellant was aware his attention toward the victim, which
eventually escalated into lewd conduct aimed at her, was unwanted and inappropriate.
The fact that he quickly left the scene on the two occasions his presence was about to be
questioned clearly shows full awareness.
{¶12} Appellant also argues there was insufficient evidence to show the victim
experienced mental distress. Mental distress is defined in R.C. 2903.211(D)(2) as:
(a) Any mental illness or condition that involves some temporary
substantial incapacity;
(b) Any mental illness or condition that would normally require
psychiatric treatment, psychological treatment, or other mental health
services, whether or not any person requested or received psychiatric
treatment, psychological treatment, or other mental health services.
The statute expressly states that “[t]he state does not need to prove in a prosecution under
this section that a person requested or received psychiatric treatment, psychological
treatment, or other mental health services in order to show that the person was caused
mental distress as described in (D)(2)(b) of this section.” R.C. 2903.211(E).
{¶13} Here, although the victim did not seek psychological treatment or mental
health services, she testified she was “scared,” “terrified,” and “shaken” from the
experience, and she developed sleep difficulties and was still frightened of the defendant.
{¶14} More importantly, for a conviction of menacing by stalking, the statute does
not require that the victim actually suffered mental distress. State v. Horsley, 10th Dist.
Franklin No. 05AP-350, 2006-Ohio-1208, ¶ 47. “The state need only show that a
defendant knowingly caused the victim to believe that he would cause her mental distress
or physical harm.” Id. Furthermore, the trier of fact can refer to its own experiences to
determine whether the defendant’s conduct caused the emotional distress. State v.
Bilder, 99 Ohio App.3d 653, 665, 651 N.E.2d 502 (9th Dist.1994). The first assignment
of error is without merit.2
II. CR-603321 (Failure to Verify an Address)
Appellant contends he should not be convicted of menacing by stalking because he never
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made any verbal threat to the victim. Menacing by stalking, as defined by R.C. 2903.211(A)(1),
does not require making a threat to the victim, although a threat of physical harm to the victim would
elevate the offense from a first-degree misdemeanor to a fourth-degree felony. R.C.
2903.211(B)(2)(b). In this case, appellant was found guilty of the offense as a fourth-degree felony
not because he made a verbal threat to the victim but because he had a prior conviction of menacing
by stalking in 2005 (CR-460006). R.C. 2903.211(B)(2)(a).
{¶15} Appellant was convicted in Cuyahoga C.P. No. CR-04-460006-A in 2005
for gross sexual imposition, a fourth-degree felony. Under Megan’s Law, he was
required to register annually for a period of up to ten years. He was released from prison
in 2008. On February 7, 2015, he failed to appear for periodic verification of his current
address as required. He was subsequently charged with failure to verify his current
address pursuant to R.C. 2950.06 (“Periodic verification of current address”). The
charge contained a furthermore specification for a prior conviction in Cuyahoga C.P.
No. CR-08-510251-A, where he was convicted of attempted failure to provide notice of
change of address in violation of R.C. 2950.05 (“Notice of change of address”).
{¶16} Appellant pleaded no contest in the instant reporting violation case, and the
trial court found him guilty. Because of the prior conviction specification, his offense
was elevated from a fourth-degree felony to a third-degree felony, pursuant to R.C.
2950.99. The trial court sentenced him to 24 months, concurrent to the term imposed in
CR-604159.
Appeal: Applicability of Enhancement Provision of R.C. 2950.99
{¶17} Under the first assignment of error relating to CR-603321, appellant
challenges the enhancement of his conviction of failure to verify his address from a
fourth-degree felony to a third-degree felony based on his prior conviction of attempted
failure to provide notice of change of address.
{¶18} R.C. 2950.99 prescribes the punishment for nonreporting offenses. When
an offender has a prior conviction for a nonreporting offense, the level of a subsequent
offense is elevated. The portion of the statute pertinent to appellant provides that “[i]f
the offender previously has been convicted of or pleaded guilty to * * * a violation of a
prohibition in section 2950.04 [Duty to register], 2950.041[Duty to register resulting from
child-victim oriented offense], 2950.05 [Notice of change of address], or 2950.06
[Periodic verification of current address] of the Revised Code * * *[,]” he is guilty of a
felony of the third degree. R.C. 2950.99(A)(1)(b)(iii).
{¶19} Here, appellant’s offense of failure to verify his address was elevated from
a fourth-degree felony to a third-degree felony because of an alleged prior conviction
under R.C. 2950.05 for failure to provide notice of change of address in CR-510251.
However, in that case, he was convicted of attempted failure to provide notice of change
of address, not the actual violation. The question presented in this appeal is therefore
whether the enhancement provision in R.C. 2950.99 applies when the prior conviction is
an attempt offense. The word “attempt” does not appear in R.C. 2950.99.
{¶20} In State v. Wilson, 1st Dist. Hamilton No. C-090436, 2010-Ohio-2767, the
First District addressed a different question, but its rationale is equally applicable to the
present issue. Wilson was convicted of attempted failure to register a change of address
in the case. Under another sentence enhancement provision set forth in R.C.
2950.99(A)(2)(b), when a defendant such as Wilson who had a prior conviction of a
reporting violation and the underlying offense for the prior conviction was a felony, the
trial court was required to sentence such a repeat offender to a mandatory three-year
prison term. R.C. 2950.99(A)(2)(b). Wilson argued the enhancement provision of
R.C. 2950.99(A)(2)(b) should not apply to him because he was only convicted of
attempted failure to register a change of address.
{¶21} The First District agreed with Wilson’s contention, citing the principle of
statutory interpretation that “‘[a]n unambiguous statute must be applied in a manner
consistent with the plain meaning of the statutory language, and a court cannot simply
ignore or add words.’” Wilson at ¶ 5, quoting Portage Cty. Bd. of Commrs. v. Akron,
109 Ohio St.3d 106, 2006-Ohio-954, 846 N.E.2d 478, ¶ 52. The First District reasoned
that R.C. 2950.99 required the trial court to impose a mandatory three-year prison term on
repeat nonreporting offenders whose underlying offense for the prior reporting violation
was a felony, but the plain language of the statute does not require such a mandatory term
for a defendant convicted only of an attempted failure to register.
{¶22} The Sixth District applied the same “plain meaning” doctrine when it
encountered the question presented in the instant appeal: whether a prior conviction of
attempted reporting violation may be used to enhance the punishment of a subsequent
offense of a reporting violation. State v. Hoselton, 6th Dist. Lucas No. L-09-1150,
2011-Ohio-1396. In that case, Hoselton was convicted previously of attempted failure
to verify his address. Because of his prior conviction, the trial court applied the
enhancement provision of R.C. 2950.55(A)(2)(b) and sentenced him to a mandatory
three-year prison term. The Sixth District, similarly guided by the principle of statutory
interpretation applied in Wilson, held that the plain and unambiguous language set forth
in R.C. 2950.99 does not state enhancement applicability to both violations and attempted
violations of the enumerated statutes, and therefore, the enhancement provision of the
statute is clearly and expressly limited to actual violations themselves. Id. at ¶ 10.3
{¶23} In State v. Littlejohn, 8th Dist. Cuyahoga No. 103234, 2016-Ohio-1125, this
court encountered the same question of whether a prior conviction of attempted
nonreporting offense may be used to enhance the level of a subsequent nonreporting
offense. This court, citing Wilson, 1st Dist. Hamilton No. C-090436, 2010-Ohio-2767,
applied the same principle of statutory interpretation and stated, in dicta, that the
enhancement provision of R.C. 2950.99 did not apply because the defendant’s prior
conviction was for attempted failure to register.4
{¶24} Thus, following these precedents, we also apply the plain and unambiguous
meaning of R.C. 2950.99 and decline to insert into the statute the word “attempt.”
{¶25} Even if there were any ambiguity in the statute, it is a long-standing
principle that a criminal statute is to be strictly construed against the state. State v.
Hooper, 57 Ohio St.2d 87, 89, 386 N.E.2d 1348 (1979). “‘[W]here there is ambiguity in a
criminal statute, doubts are resolved in favor of the defendant.’” State v. Young, 62
The state argues Hoselton is inapplicable on the ground that Hoselton was a registered sex
3
offender under Adam Walsh Act and appellant Beckwith is a registered sex offender under Megan’s
Law. However, the pertinent portion of R.C. 2950.99 under the Adam Walsh Act and Megan’s Law
regarding the prior conviction enhancement employ the same language. Therefore, contrary to the
state’s contention, Hoselton is applicable here.
Because Littlejohn’s trial counsel did not object to the use of the prior conviction to enhance
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the penalty at the trial court, this court found no plain error. In the instant case, appellant’s trial
counsel, citing Hoselton, specifically objected to the application of the penalty enhancement provision
of R.C. 2950.99.
Ohio St.2d 370, 374, 406 N.E.2d 499 (1980), quoting United States v. Bass, 404 U.S. 336,
348, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). The Revised Code expressly states that
“sections of the Revised Code defining offenses or penalties shall be strictly construed
against the state, and liberally construed in favor of the accused.” See also State v.
Woods, 48 Ohio St.2d 127, 134-135, 357 N.E.2d 1059 (1976). Construing the statute
strictly against the state and liberally in favor of the defendant, we are required to reverse
the trial court’s sentence of appellant based on the enhancement provision of R.C.
2950.99. The trial court erred in applying the statute’s enhancement provision and
elevating appellant’s offense based on a prior conviction of attempted reporting violation.
The first assignment of error relating to CR-603321 is sustained.
{¶26} Appellant’s convictions for stalking and failure to verify his address are
affirmed; however, his sentence for the failure to verify his address is reversed and
remanded for further proceeding consistent with this opinion.
{¶27} This cause is affirmed in part, reversed in part and remanded to the lower
court for further proceedings consistent with this opinion.
It is ordered that appellant and appellee share the 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 common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
___________________________________
TIM McCORMACK, JUDGE
KATHLEEN ANN KEOUGH, A.J., and
MELODY J. STEWART, J., CONCUR