State v. Kinstle

• Decision Date: 17 December 2012
• Docket Number: No. 1–11–45.,1–11–45.
• Parties: STATE of Ohio, Plaintiff–Appellee, v. Nicholas J. KINSTLE, Defendant–Appellant.
• Court: Ohio Court of Appeals

985 N.E.2d 184

STATE of Ohio, Plaintiff–Appellee,

v.Nicholas J. KINSTLE, Defendant–Appellant.

No. 1–11–45.

Court of Appeals of Ohio, Third District, Allen County.

Dec. 17, 2012.

Christopher T. Travis, for appellant.

Jana E. Emerick, Lima, for appellee.

ROGERS, J.

{¶ 1} Defendant–Appellant, Nicholas Kinstle, appeals the judgment of the Court of Common Pleas of Allen County convicting him of 23 counts of intimidation and sentencing him to a total prison term of eight years. On appeal, Kinstle argues that the trial court erred by (1) failing to dismiss the indictment as violative of the United States and Ohio Constitutions; (2) entering guilty verdicts that were against the manifest weight of the evidence; and (3) abusing its discretion in sentencing him to eight years in prison. For the reasons that follow, we affirm the judgment of the trial court.

{¶ 2} On February 17, 2011, the Allen County Grand Jury indicted Kinstle with 23 counts of intimidation in violation of R.C. 2921.03(A), a felony of the third degree. The counts alleged intimidation of the following victims: (1) Count I—Darin Rowe; (2) Count II—Jerry Maus; (3) Count III—Dean McCombs; (4) Count IV—Tom Binkley; (5) Count V—Kevin Kesner; (6) Count VI—Branden Provonsil; (7) Count VII—Margie Miller; (8) Count VIII—Jim Link; (9) Count IX—Clyde Breitigan; (10) Count X—Jeffrey Reed; (11) Count XI—Richard Warren; (12) Count XII—Rhonda Eddy; (13) Count XIII—Becky Saine; (14) Count XIV—Al Mefferd; (15) Count XV—Fred DePalma; (16) Count XVI—Jerry Morris; (17) Count XVII—Brock Douglass; (18) Count XVIII—Sam Crish; (19) Count IXX—Gary Hook; (20) Count XX—Tim Jackson; (21) Count XXI—Greg Sneary; (22) Count XXII—Sam Bassitt; and (23) Count XXIII—Dan Reiff.

{¶ 3} The indictment arose out of Kinstle's production and transmission of various notarized documents to the above-named victims demanding that they abstain from performing certain actions against him or pay him a substantial amount of money. The documents have the veneer of being official legal filings due to their format and language, but none of them were ever filed with a court. At the time of the receipt of these documents, each victim was involved in legal proceedings against Kinstle as a judge, witness, or governmental official.

{¶ 4} On May 25, 2011, Kinstle moved to dismiss the indictment on the basis that R.C. 2921.03 is unconstitutional. The trial court denied the motion on June 8, 2011.

{¶ 5} The jury trial of this matter then commenced on June 27, 2011 and continued through June 29, 2011. Testimony was adduced from all of the victims identified in the indictment, except for Sam Bassitt, Dan Reiff, and Greg Sneary, the three elected members of the Allen County Board of County Commissioners. This testimony established that three previous legal actions were relevant to this matter and that either during or after the pendencyof these actions, Kinstle took various actions against the victims.

{¶ 6} The first relevant legal action was a 2005 tax foreclosure action against Kinstle. At that time, he owned property at 3320 Swaney Road in Harrod, Ohio.¹ Since Kinstle failed to pay the real estate taxes on the property for 10 years, Rhonda Eddy, as the Allen County Treasurer, initiated a tax foreclosure action. During the course of the action, James Link was appointed to serve as County Treasurer while Ms. Eddy became the Allen County Auditor.

{¶ 7} Judge Richard Warren of the Allen County Court of Common Pleas presided over the action and granted a foreclosure decree in favor of the County Treasurer. Brandon Provonsil testified that he was interested in bidding on the property during the foreclosure process and that he visited the property to inspect it. During his time there, Kinstle confronted Provonsil, explained that he was undergoing the foreclosure process, and made a “veiled threat” against Provonsil. Trial Tr., p. 141.

{¶ 8} The Allen County Sheriff's Department, led by Sheriff Samuel Crish, conducted two auctions of the property, but neither produced a willing bidder. As a result, the Allen County Board of County Commissioners was offered the possibility of taking the property. After considering the possibility, the Commissioners, acting upon the advice of Allen County Administrator Becky Saine, decided to take the property. Consequently, on November 12, 2009, Judge Warren granted an order forfeiting the property to Allen County in care of the Board of County Commissioners. Once this order was handed down, Kinstle was required to vacate and while he was removing his personal effects from the property, Sergeant Alan Mefferd with the Allen County Sheriff's Department supervised Kinstle's actions. Sergeant Mefferd testified that during the course of his time on the property, Kinstle threatened to file legal action against Sergeant Mefferd and to take action against his pension.

{¶ 9} Judge Warren, Treasurer Link, Auditor Eddy, Sheriff Crish, Administrator Saine, Sergeant Mefferd, and Provonsil all testified that during the pendency of the foreclosure action, they received purportedly legal documents demanding that they stop their involvement in the foreclosure process and pay large sums of money to Kinstle. Administrator Saine further testified that Commissioners Bassitt, Reiff, and Sneary also received such documents through the mail. The State introduced the documents that each of these victims received into evidence.

{¶ 10} Generally, the documents contain the following relevant items. First, Kinstle mailed each victim an “Affidavit of Specific Negative Averment, Opportunity to Cure, and Counterclaim” that includes fifty-three “counts,” some of which refer to the actions of the above victims during the foreclosure action. Because Kinstle claimed the victims' actions were unlawful, he demanded that they “dismiss any and all claims against [him],” pay him a certain amount of damages, or respond to the various allegations in his “specific negative averment.” State's Exhibit 1, p. 18.

{¶ 11} Subsequently, when the victims did not comply with Kinstle's demands, he mailed most of them a “Notice of Fault and Demand for Payment.” ² In these notices, Kinstle stated that the victims' failure to respond entitled him, under the Uniform Commercial Code, to the payment of astronomical sums of money from the victims. He claimed that he was entitled to the following payments: (1) approximately $101 billion from Judge Warren, Treasurer Link, Auditor Eddy, Administrator Saine, and Sergeant Mefferd; (2) $1.1 billion from Sheriff Crish; and (3) $6 million from Commissioners Bassitt, Reiff, and Sneary. While Kinstle did send a “specific negative averment” to Provonsil stating he was subject to joint and several liability, there was no testimony to indicate that Kinstle sent him a “notice of fault and demand for payment.”

{¶ 12} The second relevant legal action was a 2010 criminal case charging Kinstle with arson and criminal damaging. Judge Warren presided over the case, which arose from Kinstle's alleged action of setting fire to the grass on his property at 3320 Swaney Road. Allen County Sheriff Deputies Tim Jackson, Fred DePalma, Jerry Morris, Brock Douglass, and Gary Hook investigated the alleged arson. During the course of this investigation, the deputies spoke to Provonsil and several of Kinstle's neighbors, including Darin Rowe, Jerry Maus, Dean McCombs, Tim Binkley, and Kevin Kesner. Lieutenant Clyde Breitigan, the head of the Investigative Division of the Allen County Sheriff's Department, supervised the investigation.

{¶ 13} These officers and witnesses each received a similar set of documents from Kinstle during the pendency of the arson prosecution. Again, each victim received a “specific negative averment” that referred to his activities against Kinstle, that demanded he drop his claims against Kinstle, and that required him to pay a large sum of money or answer Kinstle's various allegations. When the victims did not comply, most victims then received a notice of fault stating that Kinstle was entitled to damages. In total, Kinstle demanded the following payments: (1) approximately $101 billion from Lieutenant Breitigan, Deputy DePalma, Deputy Morris, Brock Douglass, Deputy Jackson, and Deputy Hook; and (2) approximately $409 billion from Rowe and Kesner.³ There is no indication that McCombs, Binkley, or Maus received a “notice of fault and demand for payment.”

{¶ 14} The third relevant legal action was a civil action in which Kinstle was the named defendant. On September 8, 2009, Judge Jeffrey Reed found that Kinstle was a vexatious litigator. Consequently, Judge Reed ordered that Kinstle submit all proposed filings to him for approval and that Kinstle was only allowed to officially file his documents with the Allen County Clerk of Courts upon Judge Reed's approval. Due to Judge Reed's order, Margie Miller, a Deputy Clerk in the Clerk of Courts' Office, refused to accept several of Kinstle's filings. While this order was still in effect, both Judge Reed and Deputy Clerk Miller received “specific negative averments” that were similar to the ones discussed above. Deputy Clerk Miller also received a “notice of fault and demand for payment” stating that Kinstle was entitled to approximately $111 billion from her. There is no indication that Judge Reed received such a notice.

{¶ 15} During the course of the State's case, Kinstle agreed to the following stipulation: “As to all notarized documents sent to alleged victims in this case, the defendant appeared before the document, and either sent the document or caused the document to be sent to the alleged victim on each document.” Trial Tr., p. 112. After the State rested its case, Kinstle moved for acquittal, but the trial court denied the motion.

{¶ 16} Kinstle then testified in his own defense, but his testimony was difficult to follow and mainly focused on his beliefs as they relate to the Redemptionist movement. The Redemptionists are a...