950 N.E.2d 1040 (Ohio Mun. 2011), 2010 CRB 24641, Cleveland v. Hernandez

Docket Nº:2010 CRB 24641.
Citation:950 N.E.2d 1040, 163 Ohio Misc.2d 37, 2011-Ohio-3394
Opinion Judge:EMANUELLA GROVES, Judge.
Attorney:Robert J. Triozzi, Cleveland Law Director, and Lorraine Coyne, Assistant Prosecuting Attorney, for plaintiff. Walter Edwards, for defendant.
Case Date:January 11, 2011
Court:Municipal Court of Ohio

Page 1040

950 N.E.2d 1040 (Ohio Mun. 2011)

163 Ohio Misc.2d 37, 2011-Ohio-3394




No. 2010 CRB 24641.

Cleveland Municipal Court, Ohio.

January 11, 2011

Page 1041

Robert J. Triozzi, Cleveland Law Director, and Lorraine Coyne, Assistant Prosecuting Attorney, for plaintiff.

Walter Edwards, for defendant.


[163 Ohio Misc.2d 38] {¶ 1} Kevin Hernandez, defendant, has been charged with violating Cleveland Codified Ordinance (" C.C.O." ) 621.06(a), aggravated menacing. The local code section for aggravated menacing, C.C.O. 621.06(a), and the state code section, R.C. 2903.21(A), are identical. Defendant has filed a motion to dismiss the complaint because his alleged threats were communicated to the employer of the alleged victim, but not made directly to her.

{¶ 2} Defendant and alleged victim, Maria Garcia, cohabited and have children together. On June 26, 2010, while Garcia was at work, defendant called her employer. Defendant allegedly made threatening statements against Garcia to her employer. The employer notified Garcia of the alleged threats, and the police were contacted. Subsequently, defendant was charged with aggravated menacing. " Aggravated menacing" is defined as " knowingly caus[ing] another to believe that the offender will cause serious physical harm to the person or property of such other person or member of his immediate family." 1

{¶ 3} Defendant argues that since the alleged threat was stated to Garcia's employer, who is not an immediate family member, the complaint should be dismissed. There is a split in the appellate courts on the issue whether a menacing threat must be made directly to the intended victim or her immediate family.2 The Fifth, Seventh, and Eleventh Districts require the threatening party to directly address his statement to the intended victim or an immediate family member for a

Page 1042

conviction of aggravated menacing. 3 On the other hand, the First, Second, Tenth, and Twelfth Districts have held that the menacing threat need not be made directly to the intended victim.4 Additionally, the Seventh District has found that the threat need not be communicated directly to the victim.5 Cleveland is in the Eighth District, which has not yet squarely addressed the issue, so there is no controlling appellate caselaw on this question.

[163 Ohio Misc.2d 39] {¶ 4} In determining which side of the split this court should adopt, it is worthwhile to review those cases that require a direct threat to the victim in aggravated-menacing charges. In Chmiel, the defendant stated to a mental-health worker and police officer that she had thoughts of harming her three-year-old neighbor.6 In Richard, the defendant communicated the threatening statement about his ex-wife to a Child Support Enforcement Agency (" CSEA" ) worker.7 In Hileman, the defendant called the home of the Ashland County CSEA director and made a threat against his ex-wife's father.8 In all these cases, the threats were made to strangers of the intended victims. Therefore, the threats were remote to the intended victims. The intended victims had to be identified, contacted, and advised of the threats made against them. Additionally, the intended victims were not in close proximity at the time the others received the threats. The holdings in...

To continue reading