State v. William A. Lewis
| Decision Date | 03 February 1995 |
| Docket Number | 94CA13,95-LW-3722 |
| Parties | State of Ohio, Plaintiff-Appellee v. William A. Lewis, Defendant-Appellant Case |
| Court | Ohio Court of Appeals |
James A. Bennett, Gallipolis, Ohio, for Appellant.
Douglas M. Cowles, City Solicitor, Gallipolis, Ohio, for Appellee.
DECISION
Defendant William Lewis appeals his conviction for Menacing under R.C. 2903.22, alleging the following assignment of error:
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN THE TRIAL COURT FOUND THE DEFENDANT-APPELLANT GUILTY OF MENACING, R.C 2903.22, WHICH VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
The facts leading to appellant's conviction were greatly disputed at trial.
Mr Lewis lives in First Holzer Apartments, a subsidized housing complex, as a result of a back injury he suffered in 1993. He lives there with his wife, son, and his ailing mother, who resides in a separate apartment. Sometime after Mr. Lewis and his family moved in, appellant's wife was hired by the company that runs the apartment building.
Appellant's thirty-two year old daughter, Cheryl, often visited the apartment to take care of the grandmother. Cheryl eventually started to visit a male resident at the apartment, and began to stay at his apartment.
On October 19, 1993, appellant, his wife, Cheryl, and the complaining witness, Margaret Poston, attended a residents' meeting for all the tenants of the apartments. Sometime near the end of the meeting, Ms. Poston complained about the fact that Cheryl was staying at the apartments without paying rent. She also took issue with appellant's son staying at the apartments to visit the grandmother.[1]
What followed next is a matter of some debate. Evidently, a heated argument broke out between appellant, his daughter Cheryl, and the complainant Ms. Poston. At the hearing, a total of eleven witnesses testified, six for the defense, and five for the state, all of whom gave various accounts of what happened.
All six witnesses for the defense testified that appellant never made a threatening remark to Ms. Poston, although some of them indicated that there seemed to be a lot of shouting and cursing throughout the argument. However, Cheryl, who was also a defendant, admitted that she told Ms. Poston that she would "beat her ass." Several of the defense witnesses indicated that appellant told Ms. Poston that if she would "shut up," things would "go a lot better" in the building.
The five witnesses for the state also gave different versions of what transpired. The first witness for the state said that the only threatening remark made by appellant was that he was going to "beat her ass" out on Second Avenue. However, as noted above, other witnesses agreed that this remark was made by Cheryl. The second witness for the state testified that appellant told Ms. Poston that "they could get violent right on the street, if they wanted to," and that "they could go outside and talk about it out there."
The prosecution's third witness, Ms. Pettit, made no mention of appellant saying they could go outside, and also indicated that it was Cheryl who told Ms. Poston that she was going to "beat her ass." However, she stated that appellant told Ms. Poston that he would "slap her face through the wall."
Ms. Poston's testimony was similar to that of Ms. Pettit's. She accused appellant of stating that he "would slap her upside the head." However, both Ms. Pettit and Ms. Poston admitted that appellant at all times during the argument was on the other side of the room from Ms. Poston, ten to fourteen feet away. They also stated that he was sitting down and never rose out of his chair. Despite this, Ms. Poston did state that she felt afraid as a result of appellant's statement.
The prosecution's rebuttal witness, Ms. Sullivan, gave a slightly different version of what transpired. She testified that Ms. Poston said something to appellant's older son when they were in the elevator together. At the meeting, when appellant heard what Ms. Poston said to his son, appellant stated that if he were his son, he would have slapped her.
At the conclusion of the trial, the judge found appellant guilty of menacing, because of appellant's statement that he was "going to slam her face or slap her or slam her head against the wall." The trial court then fined him $250 and gave him three days in jail, but suspended $150 of the fine and the jail time on the grounds that no more altercations would occur. This appeal followed.
Although appellant's assignment of error only challenges the verdict as being against the manifest weight of the evidence, his brief also argues the sufficiency of the evidence. While we are not bound to do so, see App.R. 12(A) (2), we will address both issues.
An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether much evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Id.; State v. Flagge (Apr. 12, 1993), Adams App. No. CA536, unreported. The claim of insufficient evidence raises a question of law, the resolution of which does not allow the court to weigh the evidence. State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717, citing Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L.Ed.2d 560, 99 S.Ct. 2781; State v. Sorgee (1978), 54 Ohio St.2d 464, 377 N.E.2d 782. Such a claim, in effect, tests the legal persuasiveness of the state's case, while a weight of the evidence argument contests its logical persuasiveness. State v. Brown (Dec. 14, 1993), Ross App. No. 93CA1938, unreported, at 10.
Upon a manifest weight of the evidence argument, a reviewing court will not reverse a conviction where there is substantial evidence upon which the court could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt. State v. Johnson (1991), 58 Ohio St.3d 40, 41, 567 N.E.2d 266; State v. Eskridge (1988), 38 Ohio St.3d 56, 526 N.E.2d 304, paragraph two of the syllabus. In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed. Elyria v. Tress (1991), 73 Ohio App.3d 5, 7, 595 N.E.2d 1031, citing Martin, supra; see, also, In the Matter of Wolfe (June 11, 1992), Pickaway App. No. 91CA21, unreported.
Having reviewed the record, we find that the record contains sufficient evidence to sustain appellant's conviction. The applicable statutes under which appellant was convicted provide as follows:
Two witnesses at the trial testified that appellant told Ms. Poston that he was going to "slap" her. Ms. Poston also testified that as a result of this statement, she was afraid that appellant was going to hit her. Such evidence, if believed, would establish that the appellant knowingly caused Ms. Poston to believe that he was going to physically harm her, thus satisfying the essential elements of the crime of menacing.
Appellant, however, argues that he did not intend to frighten Ms. Poston, and that the state did not provide evidence to show that appellant acted "knowingly." We disagree. Appellant's statement that he was going to strike Ms. Poston satisfies the element of acting with knowledge. It is inconsequential that appellant was separated from Ms. Poston and made no immediate physical act to carry out his threat. See, e.g., State v. Manny (May 26, 1992), Warren App. No. CA91-06-054, unreported (defendant convicted for saying ); State v. Doney (Feb. 8, 1991), Carroll App. No. 89-B-269, unreported (defendant convicted for yelling out the window of this truck, "Meet me on the tracks, you, f_____ p_____ ."); State v. Baker (Sept. 19, 1989), Marion App. Nos. 9-88-8, 9-88-9, unreported (defendant convicted for stating "if I catch you outside or on the streets, your ass is grass.") As a result, we reject appellant's argument that the evidence was legally insufficient to sustain a conviction.
We now turn to appellant's argument that the conviction was against the manifest weight of the evidence. Two witnesses stated that appellant threatened to slap Ms. Poston. Despite the fact that other witnesses contradicted this testimony, we cannot say, based on the record before us, that the trial court clearly lost its way when reviewing the evidence. The testimony of Ms. Poston and Ms. Pettit...
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