State v. Hersh
| Decision Date | 10 September 2012 |
| Docket Number | No. 97592.,97592. |
| Citation | 2012 -Ohio- 3807,974 N.E.2d 161 |
| Parties | STATE of Ohio, Plaintiff–Appellee v. Marci E. HERSH, Defendant–Appellant. |
| Court | Ohio Court of Appeals |
OPINION TEXT STARTS HERE
Russell S. Bensing, Cleveland, OH, attorney for appellant.
William D. Mason, Cuyahoga County Prosecutor by Margaret A. Troia, Assistant County Prosecutor, Cleveland, OH, attorneys for appellee.
{¶ 1} Defendant-appellant, Marci Hersh, appeals her menacing by stalking conviction, which was rendered after a bench trial. Hersh also appeals the trial court's judgment ordering an additional period of conditional release. We reverse the trial court's judgments.
{¶ 2} In April 2009, Hersh was charged with crimes in two cases. In the first, Case No. CR–523165, Hersh was charged with two counts of menacing by stalking and two counts of telecommunications harassment. In the second, Case No. CR–523723, Hersh was charged with three counts of menacing by stalking. The cases were transferred to the mental health docket of the Cuyahoga County Court of Common Pleas.
{¶ 3} During the pretrial proceedings, Hersh's competency to stand trial was raised. Hersh was deemed incompetent to stand trial, but was treated and restored to competency. The cases proceeded to a bench trial in July 2010, and after the testimony of one witness, an alleged victim named in the first case, the trial court questioned Hersh's sanity at the times of the crimes. The trial was stayed so that the issue could be pursued.
{¶ 4} Two evaluations and reports were completed relative to Hersh's sanity. Both found that Hersh was insane at the time she committed the alleged crimes that were the subject of the first case, but sane at the time she committed the alleged crimes that were the subject of the second case. Thus, relative to the first case, the defense sought, and was granted permission, to change Hersh's not guilty plea to not guilty by reason of insanity. The defense and state stipulated to the medical and police reports, the trial court found Hersh not guilty by reason of insanity, dismissed the case, and referred Hersh for civil commitment proceedings.
{¶ 5} Subsequently, relative to the first case, the trial court found Hersh to be a mentally ill person subject to civil commitment and ordered that she be conditionally released and monitored by Jewish Family Services. The court indicated that it would retain jurisdiction over the case for 18 months, the maximum time Hersh could have received had she been found guilty. Ten months later, after the case had been assigned to a new mental health docket judge, the trial court extended the period of conditional release for an additional five years.
{¶ 6} The second case, three counts of menacing by stalking, proceeded to a bench trial. Each count related to different victims: the named victim in Count 1 was James Zull; the named victim in Count 2 was Susan Zull; and the named victim in Count 3 was Judith Weiss.
{¶ 7} The defense made a Crim.R. 29 motion for acquittal at the conclusion of the state's case and the conclusion of the presentation of all the evidence; both motions were denied. The court found Hersh not guilty of Counts 1 and 2 relative to James and Susan Zull, but guilty of Count 3, which was relative to Judith Weiss. The trial court incorporated the conditionalrelease plan from the first case, including the additional time, into the second case. Hersh now presents the following two assignments of error for our review:
I. The trial court erred in extending Defendant's conditional release beyond the maximum term of imprisonment for which Defendant could have received if the Defendant had been convicted of the most serious offense with which the Defendant was charged and for which the Defendant was found not guilty by reason of insanity.
II. The trial court erred in entering a judgment of conviction of Defendant of the offense of menacing by stalking, which was based on evidence that was insufficient to convict as a matter of law.
{¶ 8} The facts, relevant to Count 3, menacing by stalking, in the second case, with Judith Weiss as the named victim, are as follows. In 2006, Weiss contacted the police about Hersh, claiming that Hersh harassed her on a daily basis. Weiss testified that the harassment included threats and made her feel concerned for her own, as well as her family's, safety. At the time, Weiss and Hersh lived in the same apartment building and both worked at Case Western Reserve University. According to Weiss, the two were not friends, social acquaintances, or even colleagues. As a result of Weiss's complaints, Hersh was prosecuted and found guilty of menacing by stalking in 2008. Hersh was ordered to have no contact with Weiss or her family for six months.
{¶ 9} Weiss testified that after Hersh's 2008 conviction, she did not see Hersh again until April 8, 2009, when the incident giving rise to Count 3 occurred. On that date, Weiss, who still worked at Case Western Reserve University, went on her lunch break to Dave's Supermarket in the Cedar–Fairmount area of Cleveland Heights. Her plan was to purchase a few items, take them home to her apartment on Shaker Square, and return to work. As she was sitting in her car across the street from the market waiting for the light to change, Weiss saw Hersh. Weiss testified that she and Hersh made eye contact. Weiss admitted that she knew Hersh frequented the Cedar–Fairmount area.
{¶ 10} When the light turned green, and Weiss started to drive, she saw Hersh cross the street and walk in the direction of the front of the market. Weiss drove to the parking lot, which was located to the rear of the market, parked, and went into the store.
{¶ 11} Shortly after entering, Weiss saw Hersh in the store. According to Weiss, as she moved from aisle to aisle, Hersh would follow her, appearing at the opposite end of the aisle from Weiss, and ducking. Weiss quickly gathered a few items to purchase, and paid for them at the customer service desk, which was located near the rear door of the store. Weiss testified that as she was purchasing her items, Hersh was near the front door of the store, talking to someone and pointing at her. Weiss admitted that Hersh had no direct contact with her.
{¶ 12} A surveillance video from the store showing Weiss and Hersh was admitted into evidence. The video demonstrated that Hersh entered and exited the market before Weiss. Both women were in the market for approximately two minutes and were not captured in the same frames by the surveillance cameras.
{¶ 13} The testimony relative to the named victims in Counts 1 and 2, James and Susan Zull, Weiss's parents, was that they had each had encounters with Hersh in March 2009. Weiss testified that when she encountered Hersh at the store, she was aware of her parents' March encounters with Hersh. The trial court acquitted Hersh on Counts 1 and 2.
{¶ 14} For ease of discussion, we first consider Hersh's sufficiency of the evidence argument, as set forth in her second assignment of error.
{¶ 15} Crim.R. 29 mandates that the trial court issue a judgment of acquittal where the state's evidence is insufficient to sustain a conviction for the offense. Crim.R. 29(A) and a sufficiency of the evidence review require the same analysis. State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37. In analyzing whether a conviction is supported by sufficient evidence, the reviewing court must view the evidence “in the light most favorable to the prosecution” and ask whether “any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶ 16} Menacing by stalking is governed by R.C. 2903.211(A)(1), which provides that “[n]o 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 cause mental distress to the other person.”
{¶ 17} Hersh contends that the state failed to present sufficient evidence to demonstrate a “pattern of conduct.” “Pattern of conduct” is defined as “two or more actions or incidents closely related in time, whether or not there has been a prior conviction based on any of those actions or incidents.” R.C. 2903.211(D)(1). According to Hersh, there was only one relevant encounter between Hersh and Weiss—the April 8, 2009 supermarket encounter—and that one encounter could not be the basis for a “pattern of conduct.”
{¶ 18} We agree with Hersh that the encounters the two women had in 2006, which resulted in the 2008 menacing by stalking conviction, were not “closely related in time” to the supermarket encounter (as conceded by the state), 1 but we consider the state's contention that Hersh's encounters in March 2009 with Weiss's parents properly served as the basis for the “pattern of conduct.” The state cites three cases in support of its contention: Middletown v. Jones, 167 Ohio App.3d 679, 2006-Ohio-3465, 856 N.E.2d 1003 (12th Dist.); State v. Arnott, 9th Dist. No. 21989, 2005-Ohio-3, 2005 WL 17870; and State v. Halgrimson, 9th Dist. No. 99CA007389, 2000 WL 1675051 (Nov. 8, 2000).
{¶ 19} In Jones, the defendant was convicted of menacing by stalking after he had been following the victims—a mother and her young daughter—for several years. The defendant challenged his conviction contending, in part, that the city had failed to demonstrate that he had engaged in a “pattern of conduct closely related in time.” Specifically, the defendant contended that several years had lapsed between the first incident in 2001, and the incident leading to his arrest in 2004.
{¶ 20} The Twelfth Appellate District disagreed with ...
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