State v. Roy W. Henize
| Decision Date | 01 November 1999 |
| Docket Number | 99-LW-4765,CA99-04-008 |
| Parties | STATE OF OHIO, Plaintiff-Appellee v. ROY W. HENIZE, Defendant-Appellant. CASE |
| Court | Ohio Court of Appeals |
Thomas Grennan, Brown County Prosecuting Attorney, David E. Grimes 200 East Cherry Street, Georgetown, Ohio 45121, for plaintiff-appellee
Kevin K. Gavin and Ronald J. Denicola, 2020 CBLD Center, 35 East Seventh Street, Cincinnati, Ohio 45201, for defendant-appellant
Defendant-appellant, Roy W. Henize, appeals from his conviction following a bench trial in the Brown County Court for aggravated menacing in violation of R.C. 2903.21(A). For the reasons that follow, we affirm the trial court's decision.
On June 23, 1998, Patrolman Robert Freeland of the Georgetown Police Department filed a complaint in the Brown County Court charging appellant with aggravated menacing in violation of R.C. 2903.21(A), a misdemeanor of the first degree. The probable cause affidavit attached to the complaint alleged that on June 7, 1998, at approximately 7:30 p.m., a racial argument started between four juvenile boys[1] and appellant at his residence, 208 E. North Street, Georgetown, Ohio. The affidavit further stated that as the argument became heated appellant got a gun and threatened the four boys, stating that he would kill them. Brandon Murdock was listed as the victim. Appellant entered a plea of not guilty and a bench trial commenced on January 20, 1999.
At trial, Jacobs, age fourteen, and White, age fifteen testified that they were with Murdock and McKenzie when the confrontation occurred. Jacobs testified that they were walking down the street on their way to play basketball when he saw appellant "sitting on his porch with his son and wife and he had a gun." Jacobs testified that appellant started talking to Murdock regarding an incident at the IGA, and then appellant's son said, "blow a hole in them." Jacobs testified that appellant then stood up and pointed the gun at Murdock. Jacobs described the gun as being long and brown and having two barrels. On cross-examination, Jacobs maintained that when appellant pointed the gun at Murdock, they "paused for a minute, just for a few seconds" and then they ran. In addition, Jacobs testified he couldn't see appellant do anything else because he was running away; he "was just trying to get away."
White testified that they were walking down the sidewalk on their way to play basketball when he saw appellant and his wife sitting in a chair and their son, Mike, standing in the front yard. White testified that Mike and appellant asked him and Murdock if they had been at the IGA. White testified that after Murdock responded "yeah," appellant pointed a double-barreled shotgun at them and started talking about how they hang around with black people. White testified that appellant stated "he was going to kill our black girlfriends," and then Mike told appellant to put a hole in their stomach. In response, White stated that they "were scared," and that they "stood there a second in shock" because they thought they were "going to get shot."
On cross-examination, White testified that after appellant stood up with the shotgun he "didn't want to move," and he thought appellant "was going to shoot [him] in the back." White further testified that he thought appellant was pointing the gun at himself (White) and Murdock, but he could not tell for sure because he was too scared. White testified that an officer interviewed him at Tom Lightfoot's home, where White informed the officer that he saw appellant with a gun.
The state presented several witnesses who observed the confrontation between appellant and the four boys. Tonda Sparks, age fourteen, who was walking in the vicinity of appellant's residence on that day, testified that appellant "pulled a gun out on kids walking down the street." Tonda Sparks testified that appellant was talking to Larry White, Jacobs, and someone else when he stated "he was going to put a hole in their stomach." Then she saw the kids take off running. Tonda Sparks further testified that appellant made the statement to the boys while putting two bullets in the gun, and then he put the gun in the trunk of his car. She described the gun as being really long.
Rachel Sparks, age seventeen, testified that she was driving her aunt's car on a day in June 1998 when she saw appellant with a shotgun. Rachel Sparks testified that "he was waiving it around yelling stuff," and She stated that the boys on the sidewalk included Murdock, White, Chris Frazier, and others. When asked if appellant tried to shoot the gun, Rachel Sparks testified that appellant was telling them that he was going to shoot them and that she thought he was saying it to everybody because she was scared. Rachel Sparks further testified that she saw appellant point the gun at four boys across the street from him and then she saw the boys take off running. Afterwards, she saw appellant put the shotgun in the trunk of his car.
Another witness, Jesse Sparks, age twelve, testified that he was walking toward appellant's residence on June 7, 1998 when he saw appellant holding a two-barrel shotgun and standing in his driveway. Jesse Sparks testified that he saw appellant point the gun and threaten to use it. Jesse Sparks stated that he saw appellant with the shotgun while police officers were there.
Patrolman Freeland testified that on June 7, 1998, the Brown County Sheriff's Department dispatched him to appellant's residence in reference to a man with a gun. When Freeland arrived at appellant's residence, Patrolman Cyrus Baker of the Georgetown Police Department was already there talking to appellant and appellant's son. At that time, Freeland did not see any visible evidence of a shotgun or gun, but he did see an argument going on between appellant and approximately nine or ten juveniles across the street. Freeland took the names of the juveniles and asked them to go to their residences where an officer would speak to them later. Freeland testified that he did not become aware of the location of the gun until he took the juveniles' statements later.
After the state rested its case-in-chief, defense counsel made a motion for acquittal pursuant to Crim.R. 29. Defense counsel argued that there was no consistency among the state's witnesses that a gun was present, or how it was employed, if at all, by appellant to clearly indicate a possibility of causing another serious physical harm. Defense counsel also pointed out that Brandon Murdock,[2] who was named as the primary victim, did not testify. The state then made a motion to amend the complaint to include the names of Jacobs and White as victims. Over defense counsel's objection, the trial court allowed the state to amend the complaint and subsequently overruled appellant's Crim.R. 29 motion.
Appellant and his wife, Mary Henize, then testified during defendant's case-in-chief. Appellant and his wife testified that on June 7, 1998, appellant did not have a gun, and that they were on their front porch with their son when four boys stopped across the street with "super soaker" squirt guns. Mrs. Henize maintained that the four boys started calling them names and squirting them with something smelling like ammonia. Appellant testified that the boys were talking and he did not converse with them, but his son started "mouthing off" to them when they squirted their "super soakers" toward appellant's yard. On cross-examination, appellant testified that two of the boys remained at the scene with their squirt guns waiting for the police to arrive.
In its January 21, 1999 judgment entry, the trial court found appellant guilty of aggravated menacing. Appellant appeals this decision and presents five assignments of error.
Assignment of Error No. 1:
THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT IN THAT THE EVIDENCE PRESENTED WAS NOT SUFFICIENT TO SUPPORT THE FINDING OF GUILTY OF AGGRAVATING MENACING.
In his first assignment of error, appellant contends that the evidence presented did not support the finding beyond a reasonable doubt that the crime of aggravated menacing had been committed.
Appellant maintains that the evidence presented was insufficient as a matter of law to establish that there was a shotgun at his property with which to have committed the offense, or establish that the alleged victim believed that appellant would cause him serious physical harm.
Whether the evidence is legally sufficient to sustain a verdict is a question of law. State v. Thompkins (1997), 78 Ohio St.3d 380, 386, rehearing/reconsideration denied, 79 Ohio St.3d 1451. When making this inquiry, the appellate court must determine whether the state has met its burden of production at trial. The court is to assess "not whether the state's evidence is to be believed, but whether, if believed, the evidence against the defendant would support a conviction." Id. at 390 (Cook, J., concurring). The court, after viewing the evidence in a light most favorable to the prosecution, must conclude whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Smith (1997), 80 Ohio St.3d 89, 113, rehearing/reconsideration denied, 80 Ohio St.3d 1471, citing State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus.
R.C. 2903.21(A) defines "aggravated menacing" as:
[n]o person shall knowingly cause another to believe that the offender will cause serious physical harm to the person or property of such other person *** or a member of the other person's immediate family.
"A person acts knowingly, regardless...
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