State v. Ronald Tichon

• Decision Date: 19 April 1995
• Docket Number: 95-LW-2469,16653
• Parties: STATE OF OHIO, Appellee v. RONALD TICHON, Appellant C.A.
• Court: Ohio Court of Appeals

STATE OF OHIO, Appellee v. RONALD TICHON, Appellant

No. 16653.

95-LW-2469 (9th)

Court of Appeals of Ohio, Ninth District Summit

April 19, 1995

APPEAL FROM JUDGMENT ENTERED IN THE AKRON MUNICIPAL COURT OF THE COUNTY OF SUMMIT, OHIO CASE NO. 93-CRB-12264.

This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:

DECISION

DICKINSON J.

Defendant Ronald Tichon has appealed from his conviction on two counts of menacing by stalking and one count of aggravated menacing. He has argued that: (1) there was insufficient evidence presented to the trial court that he caused his victims to suffer mental distress; (2) his constitutional rights were violated by the City's failure to separate its witnesses; (3) the City failed to comply with the trial court's discovery orders thereby prejudicing his ability to properly prepare his defense; (4) the trial court committed plain error by permitting a police officer to testify regarding defendant's exercise of his Miranda rights; and (5) the trial court incorrectly received impermissible other acts testimony. This Court affirms the judgment of the trial court because; (1) there was sufficient evidence presented to the trial court establishing that the victims suffered mental distress; (2) the trial court did not abuse its discretion in failing to take any measures to remedy the violation of its separation order; (3) the trial court did not incorrectly permit one of the complaining witnesses to testify; (4) the police officer's testimony concerning defendant's refusal to make a statement to police did not rise to the level of plain error; and (5) the trial court properly received other acts evidence.

I.

Defendant was indicted on two misdemeanor counts of menacing by stalking and one count of aggravated menacing. He was tried before a jury in the Akron Municipal Court commencing January 20, 1994. After a two day trial, defendant was found guilty of all three offenses and sentenced to serve two consecutive 182 day terms of incarceration. The purported victims of defendant's criminal conduct were his neighbors, Theresa and Christopher Thorn. The Thorns resided at 542 Fouse Street, next door to defendant's residence that was located at 536 Fouse Street. Mrs. Thorn testified that defendant and his family had moved next to the Thorns' home during October or November 1992 and that the two families had been "neighborly" with each other until May 1993. Since May 1993, the relationship between the two families had degenerated to the point that Mrs. Thorn and her husband "just want[ed] to be left alone." The indictment contained allegations that defendant committed menacing by stalking "on or about October, 1993" and "on or about. November 1, 1993." Additionally, according to the indictment, defendant committed aggravated menacing "on or about the 28th day of October, 1993." Evidence was presented at trial of an altercation between defendant and Mr. Thorn that occurred on October 25, 1993. Mr. Thorn testified that, on that date, he, his wife, and their nephew were in front of their home clearing leaves when defendant pulled his car into his driveway. According to Mr. Thorn, when defendant pulled into his driveway, he "jumped out of his car" and began "hollering and screaming." Mr. Thorn testified that defendant used a number of profanities and accused him of being "the reason I got transferred." Mr. Thorn stated that defendant spat on him.

Testimony was also presented indicating that a second incident between defendant and the Thorns occurred on October 28, 1993. Apparently, Mrs. Thorn drove her husband to work every morning and typically did so at approximately 6:40 &m. On the morning of October 28, 1993, defendant allegedly followed the Thorns. Mr. Thorn testified that, after they left their home, defendant followed their car at a close distance:

Q: When did you notice [defendant] behind you?

A: When we backed out of the drive -- as we were backing out, he was coming around the corner; then we started to pull down, and he came directly behind us.

Q: You said he didn't have any headlights on?

A: No, nothing. No parking lights --

* * *

Q: What happened?

A: I told my wife to give it some gas. It was obvious to me he was following us.

* * *

Q: What, if anything, happened?

A: When we stopped at the stop sign, he was directly behind us. I turned around and looked at him. And he still hadn't turned on his headlights. He turned right with us. I told her, I says, "Let's go. Let's try to lose him.

We turned right again and went up a couple more blocks. Then we cut through a parking [lot] at Lawson's store, Dairy Mart, whatever you call it. About 35 mile an hour, through a parking lot with a station wagon. He was right on our tail.

Q: When you say "right on your tail," what do you mean by that? How close?

A: 2 or 3 feet. Right around there. * * * Then we went up and turned right again and was zigzagging through the side streets. You know, we were trying to lose him. He was right on our butts. ***

By this time, we was reaching speeds of 50 miles an hour in a station wagon on side streets. You can say I was a little scared about this, yeah.

Ultimately, the Thorns were able to lose defendant in traffic.

Additionally, evidence was presented that, on November 1, 1993, defendant and his wife took a photograph of Mr. and Mrs. Thorn as Mrs. Thorn was picking her husband up from work. Mr. Thorn testified that, just as he and his wife were leaving, he saw a flash and shouted "It's a gun." Further, Mr. Thorn testified that, after the photograph was taken, defendant followed them back towards their home. According to Mr. Thorn, defendant followed their car very closely while travelling at a high rate of speed.

As a result of these incidents, defendant was indicted on two counts of menacing by stalking and one count of aggravated menacing. After a jury trial, defendant was found guilty of all three charges. Defendant timely appealed to this Court.

II.

A.

Defendant's first assignment of error is that the City failed to present sufficient evidence to the jury that he caused his alleged victims to suffer mental distress. Primarily, defendant has argued that the prosecution was required to present expert testimony:

In the instant case, the City did not offer expert testimony of any kind. Instead, the City relied on the testimony of lay witnesses to prove the required element. There was no evidence that any of these witnesses had any type of medical training necessary to diagnose or recognize a temporary substantial incapacity or mental illness that would normally require psychiatric treatment.

Section 2903.21.1(A) of the Ohio Revised Code states that "[n]o person by engaging in a pattern of conduct shall knowingly cause another to believe that the offender will cause physical harm to the other person or cause mental distress to the other person." Subsection (C)(2) of that section defines mental distress as "any mental illness or condition * * * that would normally require psychiatric treatment" This Court has determined that expert testimony is not required to establish the existence of mental distress for the purpose of proving an element of menacing by stalking. State v. Bilder (Dec. 30, 1994), Summit App. No. 16754, unreported at 15. In Bilder, this Court quoted the Ohio Supreme Court, which had held in an analogous case that expert testimony was not required to establish an emotional injury:

[Expert] medical testimony can assist the judicial process in determining whether the emotional injury is indeed, serious * * *. However, lay witnesses who were acquainted with the plaintiff, may testify as to any marked changes in the emotional or habitual makeup that they discern in the plaintiff after the accident has occurred. The jurors themselves, can refer to their other experiences in order to determine whether, and to what extent, the defendant's conduct caused the serious emotional distress.

Id. at 15-16, quoting Paugh v. Hanks (1983), 6 Ohio St.3d 72, 80 (citation omitted). Similarly, in this case, the jurors could have relied on their experiences and on the testimony presented by Mr. and Mrs. Thorn to determine if, in fact, they suffered mental distress because of defendant's actions.

There was sufficient evidence presented to the trial court for the jury to find beyond a reasonable doubt that Mr. and Mrs. Thorn suffered mental distress. Mrs. Thorn testified that, as a result of defendant's conduct, she started going to counseling at "[t]he end of October, first of November":

I go to counseling once a week. And I feel like I'm losing control. I'm normally a strong woman. I normally hold myself together. All I do is cry. I have to watch where I go; who's behind me; what stores to go in. I live in terror. It used to be I could go home and find peace. But I can't any more. I'm afraid to go home.

Additionally, Mr. Thorn testified that he suffered mental distress as a result of defendant's activities:

I'm on sleeping pills, tranquilizers. It affected my work. I've been watching my wife cry for about seven months. I'm at my wit's end. I don't know what to do anymore. I've done everything that I can. * * *

Inasmuch as there was sufficient evidence be?ore the jury that both Mr. and Mrs. Thorn suffered mental distress, defendant's first assignment of error is overruled.

B.

Defendant's second assignment of error is that the trial court incorrectly failed to enforce its order that the witnesses be separated. Defendant has argued that the trial court ordered the City's witnesses to be separated pursuant to Rule 615 of the Ohio Rules of Evidence and that the City failed to comply with that order. He has asserted that several...