State v. Wrage, 2009 Ohio 3390 (Ohio App. 7/2/2009)

• Court: Ohio Court of Appeals
• Writing for the Court: Harsha
• Citation: State v. Wrage, 2009 Ohio 3390 (Ohio App. 7/2/2009), 2009 Ohio 3390, No. 08CA3237. (Ohio App. Jul 02, 2009)
• Decision Date: 02 July 2009
• Docket Number: No. 08CA3237.,08CA3237.
• Parties: State of Ohio, City of Portsmouth, Plaintiff-Appellee, v. Eric A. Wrage, Defendant-Appellant.

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2009 Ohio 3390

State of Ohio, City of Portsmouth, Plaintiff-Appellee, v. Eric A. Wrage, Defendant-Appellant.

No. 08CA3237.

Court of Appeals of Ohio, Fourth District, Scioto County.

Released July 2, 2009.

James H. Banks, Dublin, Ohio, for Appellant.

Michael L. Jones, City Solicitor, and Jerry L. Buckler, Assistant City Solicitor, Portsmouth, Ohio, for Appellee.

DECISION AND JUDGMENT ENTRY

HARSHA, J.

{¶1} As a result of a domestic incident, Eric A. Wrage faced a trial on multiple criminal charges. Wrage appeals the judgment convicting him of aggravated menacing and contends that conviction is inconsistent with his acquittal on the domestic violence charge. Because demanding consistency between separate verdicts would require speculation into the jury's reasoning, there is no such requirement. Thus, we reject this argument.

{¶2} Wrage also asserts that the trial court committed various evidentiary errors. First, he argues that the court improperly compelled his wife to testify. Because threats do not constitute confidential marital communications and because Wrage is charged with committing a crime against his spouse, the trial court did not abuse its discretion by compelling Mrs. Wrage's testimony. Next he contends that the court improperly allowed the city to impeach its own witness by "permitting the state to introduce evidence of alleged other bad acts of Defendant-Appellant Wrage * * *." Because that evidence helped show the victim's state of mind regarding Wrage's threat and because Wrage opened the door to this testimony, this argument is meritless.

{¶3} Next, Wrage asserts that there is insufficient evidence to support his aggravated menacing conviction and it is against the manifest weight of the evidence. However, the city's evidence satisfied both the legal requirement of presenting a prima facie case and the rational requirement of persuading a reasonable jury. In essence, the outcome of this case turned upon whether the jury accepted the victim's testimony that she did not believe her husband would harm her. In light of abundant evidence that the victim was fearful of being hurt, the jury chose to disbelieve her testimony that she did not consider Wrage's threats to be serious. Nothing in the record indicates that the jury clearly lost its way in reaching that conclusion. Accordingly, we reject this argument.

{¶4} Finally, Wrage asserts that the verdict form is not sufficient to convict him of aggravated menacing because it fails to state the degree of the offense charged or any aggravating elements. This argument is also baseless. The city charged him with aggravated menacing under R.C. 2903.21, which is a first-degree misdemeanor unless it is enhanced. However, the city did not attempt to do so. Thus, Wrage's assertion that R.C. 2945.75(A)(2) applies is meritless because he was convicted of the least degree of the offense.

{¶5} Accordingly, we overrule all four of Wrage's assignments of error and affirm the trial court's judgment.

I. FACTS

{¶6} In November 2006, Mrs. Wrage called 911 and reported that her husband was intoxicated and shooting a gun outside their home. Scioto County Sheriff's Deputies responded to the report. Upon their arrival, the deputies discovered Mrs. Wrage shaken up and crying; Mr. Wrage smelled strongly of alcohol and appeared to be drunk.

{¶7} Following the incident, Mrs. Wrage filed a statement with the sheriff's office. She explained the incident:

Eric came home drunk—threatened me that he had some one [sic] with him & if I said or did anything he didn't know what he would do to me. He brought the guy in. I asked him to leave & told my kids to get upstairs.

Later he threatened to have the `crackhead' who had been here slit my throat with a steak knife.

I went to bed upstairs later & then heard him go into the basement. Then I heard him loading a gun & talking to himself about blowing the car full of shotgun holes. I heard him go outside. I came downstairs but couldn't see him. I heard him shoot the gun 3 times. That's when I went upstairs & called 911.

{¶8} Mr. Wrage subsequently was charged with (1) aggravated menacing, in violation of R.C. 2903.21; (2) domestic violence by threat, in violation of R.C. 2919.25(C); and having a weapon while intoxicated, in violation of R.C. 2923.15(A)(2).¹

{¶9} At trial, the court ordered Mrs. Wrage to testify and rejected Mr. Wrage's claim of spousal immunity. The court ruled that because Mrs. Wrage is the alleged victim in the case, the court could force her to testify.

{¶10} In contrast to the statement Mrs. Wrage gave to law enforcement officers on the night of the incident, at trial Mrs. Wrage attempted to downplay the incident. She stated that she called 911 after she heard her husband shooting a gun outside of the home. She explained that earlier in the evening, she and her husband had an argument. Mrs. Wrage testified that during the argument, her husband threatened to have the man he brought home earlier that evening to slit her throat. She stated: "We had been arguing for * * * quite some time and * * * he had brought a friend of his home that I didn't know and I was upset and wanted them to leave, wanted the person to leave and * * * we argued after the person left. And I had said I didn't know the person, he could be anybody. I didn't want him in the house or around my children, he could slice their throats, whatever. * * * [A]nd later in the argument he threatened to have the man come back and slice my throat." She stated that she did not believe his threat was serious and that she did not feel threatened. Mrs. Wrage explained that she called 911 because once she heard Mr. Wrage shooting the gun, she became worried about her and the children's safety—she was worried that an accident might happen.

{¶11} In an attempt to discredit Mrs. Wrage's claim that she did not take Mr. Wrage's threat seriously, the city presented evidence, over objection, of a prior incident where Mr. Wrage broke her nose. The court gave the jury a limiting instruction: "Such * * * testimony is not admissible to prove the character of a person in order to show that he * * * acted in conformity with those acts. It is however admissible to prove the element of the belief of a family member that the offender would or could cause imminent physical harm."

{¶12} The jury subsequently found Mr. Wrage guilty of aggravated menacing.

II. ASSIGNMENTS OF ERROR

{¶13} Mr. Wrage raises four assignments of error:

First Assignment of Error:

"Defendant-appellant's conviction on the charge of aggravated menacing and his acquittal on the charge of domestic violence threat are incongruous, such to demonstrate that the jury `lost its way' and require reversal of his conviction."

Second Assignment of Error:

"The trial court erred in the admission of evidence such to require reversal of defendant's conviction."

Third Assignment of Error:

"Defendant's conviction is manifestly against the weight of the evidence and must be overturned."

Fourth Assignment of Error:

"The verdict form on the charge of aggravated menacing does not support defendant's conviction."

III. CONSISTENCY BETWEEN VERDICTS

{¶14} In his first assignment of error, Wrage argues that the jury's verdicts regarding the domestic violence and aggravated menacing charges are inconsistent. He asserts that the jury's aggravated menacing conviction contradicts its domestic violence acquittal.

{¶15} "[A] verdict that convicts a defendant of one crime and acquits him of another, when the first crime requires proof of the second, may not be disturbed merely because the two findings are irreconcilable." State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995, at ¶81; see, also, State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047; State v. Adams (1978), 53 Ohio St.2d 223, 7 O.O.3d 393, 374 N.E.2d 137. "`"Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment."'" Id., quoting United States v. Powell (1984), 469 U.S. 57, 62, 105 S.Ct. 471, 83 L.Ed.2d 461, quoting Dunn v. United States (1932), 284 U.S. 390, 393, 52 S.Ct. 189, 76 L.Ed. 356. "`[I]nconsistent verdicts-even verdicts that acquit on a predicate offense while convicting on the compound offense-should not necessarily be interpreted as a windfall for the Government at the defendant's expense.'" Id., quoting Powell, 469 U.S. at 65. "As Powell notes, `[i]t is equally possible that the jury, convinced of guilt, properly reached its conclusion on the compound offense, and then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the lesser offense.'" Id., quoting Powell, 469 U.S. at 65. "[T]he sanctity of the jury verdict should be preserved and could not be upset by speculation or inquiry into such matters to resolve the inconsistency." State v. Lovejoy (1997), 79 Ohio St.3d 440, 444, 683 N.E.2d 1112; see, also, State v. Ball, Hocking App. No. 07CA2, 2008-Ohio-337; State v. Reine, Scioto App. No. 06CA3102, 2007-Ohio-7221. Although the case at bar does not involve a multi-count indictment but instead three separate complaints that were tried together, these same principles apply.

{¶16} Furthermore, while a domestic violence² conviction requires proof that the offender threatened imminent physical harm, an aggravated menacing³ conviction does not. See State v. Ali, 154 Ohio App.3d 493, 2003-Ohio-5150, 797 N.E.2d 1019, at ¶26. "[A] conditional or future threat can constitute a violation of menacing laws." Id.; see, also, State v. Collie (1996), 108 Ohio App.3d 580, 671 N.E.2d 338. "`[T]he crime of menacing can encompass a present state of fear of bodily harm and a fear of bodily harm in the future.'" Ali, 154 Ohio App.3d at 502, quoting W. Lafayette v. Deeds (Oct. 23, 1996), Coshocton App. No. 96CA3; see, also, State v. Lewis (Aug. 22, 1997) Portage App. No. 96-P-0272 (noting that threats of potential harm are...