Yambrisak v. State

• Decision Date: 21 August 2017
• Docket Number: Case No. 17CA8
• Citation: 2017 Ohio 7310
• Parties: BYRON E. YAMBRISAK Plaintiff-Appellant v. STATE OF OHIO Defendant-Appellee
• Court: Ohio Court of Appeals

2017 Ohio 7310

BYRON E. YAMBRISAK Plaintiff-Appellant v. STATE OF OHIO Defendant-Appellee

Case No. 17CA8

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

August 21, 2017

JUDGES: Hon. Patricia A. Delaney, P.J. Hon. William B. Hoffman, J. Hon. Earle E. Wise, Jr., J.

OPINION

CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 2015-CV-0701

JUDGMENT: Affirmed

APPEARANCES:

For Plaintiff-Appellant

JACQUELINE GREENE

TERRY GILBERT

55 Public Square, Suite 1055

Cleveland, Ohio 44113

For Defendant-Appellee

MICHAEL DEWINE

Ohio Attorney General

DEBRA GORRELL WEHRLE

Assistant Attorney General

150 East Gay Street, 16^th Floor

Columbus, Ohio 43215

Hoffman, J.,

{¶1} Plaintiff-appellant Byron E. Yambrisak appeals both the January 5, 2017 Decision and the February 21, 2017 Judgment Entry entered by the Richland County Court of Common Pleas denying his request for declaration of wrongful imprisonment, pursuant to R.C. 2743.48(A). Defendant-appellee is the state of Ohio.

STATEMENT OF THE CASE¹

{¶2} On May 10, 2011, Appellant was indicted on one count of retaliation, in violation of R.C. 2921.05(A); and one count of intimidation, in violation of R.C. 2921.03. A jury found Appellant guilty on both counts. The trial court sentenced Appellant to three years on the retaliation charge, and three years on the intimidation charge.

{¶3} Appellant filed a direct appeal of his convictions to this Court in State v. Yambrisak, Richland No. 2012 CA 50, 2013-Ohio-1406. Via Opinion and Judgment Entry entered April 5, 2013, this Court reversed Appellant's convictions on both counts, remanding the matter to the trial court with instructions to enter acquittal on both counts. Id. Appellant served ten months in prison before his release on April 17, 2013.

{¶4} In State v. Yambrisak, 2013-Ohio-1406, this Court held,

In the late morning of July 15, 2011, Detective Pat Smith of the Richland County Sherriff's Department was called to MedCentral Hospital to investigate a child victim of rape. Detective Smith was in plain clothes and driving an unmarked vehicle; however she did have her service revolverholstered on her right hip. She left the hospital a few minutes before 1:00 p.m. Detective Smith testified that she had parked her unmarked vehicle in the parking lot located on Glessner Avenue, across from the hospital. As she prepared to cross the street at the pedestrian crosswalk, a small green vehicle sped through the crosswalk.

Detective Smith crossed at the crosswalk towards the parking lot. As she approached her vehicle, Detective Smith was hailed by an old acquaintance, Vernessa Bond, who happened to be parked near Detective Smith's vehicle. The two engaged in a casual conversation. While the two conversed, the little green vehicle drove by again. The male passenger began yelling racial slurs towards Detective Smith and Ms. Bond, both of whom are African-American. The verbal tirade included phrases such as "I hate you, you fucking nigger. You black bitch, I'm going to fuck you up."

The vehicle proceeded on towards Glessner Avenue as the two women continued their conversation. The vehicle returned and stopped on Lind Avenue, close to where the women were parked. The occupant began yelling racial slurs again this time including, "Do you like talking to young girls about sex? Do you like talking to prostitutes about sex? I hate you, you fucking nigger, I'm going to fuck you up." Detective Smith took two steps towards the vehicle to see if she could identify the occupant. Detective Smith then testified that she yelled, "I know who you are, Byron Yambrisak, you need to be on your way." The vehicle immediately sped away. Detective Smith immediately called dispatch on her cell phone to report the incident, prior to returning to her vehicle.

***

Both intimidation and retaliation require that the state prove beyond a reasonable doubt an "unlawful threat of harm." The Supreme Court of Ohio suggested that, to be unlawful, the threat itself must violate a predicate offense. State v. Cress, 112 Ohio St.3d 72, 858 N.E.2d 341, 2006-Ohio-6501, ¶ 43.(Construing the "unlawful threat of harm" element of R.C. 2912.04(B), attempt to intimidate victim, witness or attorney for being a witness) The court held "that the statutory language in R.C. 2921.04(B), proscribing intimidation by an 'unlawful threat of harm,' is satisfied only when the very making of the threat is itself unlawful because it violates established criminal or civil law." Id. at ¶ 42, 858 N.E.2d 341. The court held that the threat itself, not the threatened conduct, must be unlawful. Id. at ¶ 38, 858 N.E.2d 341. As the "threat of harm" language of R.C. 2921.03 is identical to the language construed by the Court in Kress [SIC], we find the Supreme Court's analysis to be persuasive in a case involving intimidation under R.C. 2921.03(A).

In this case, the only evidence of an alleged unlawful threat of harm are the following statements,

I hate you, you fucking nigger. You black bitch, I'm going to fuck you up.

* * * Do you like talking to young girls about sex? Do you like talking to prostitutes about sex? I hate you, you fucking nigger. I'm going to fuck you up.

1T. at 145-146. Yambrisak does not deny that he made these statements or that he directed the statements to Detective Smith.

***

We find based upon all the surrounding circumstances, Yambrisak's words were too unequivocal, unconditional, not immediate and not specific enough to convey to Detective Smith that he was retaliating for her involvement with him two years earlier.

We find there was insufficient evidence in the record that Yambrisak purposefully or unlawfully threatened Detective Smith in retaliation for her involvement with his 1999 criminal matter.

Likewise, we find insufficient evidence in the record to find that Yambrisak attempted to influence, intimidate, or hinder Deputy Smith in the discharge of her duty. Nothing Yambrisak did or said on July 15, 2011 was in any way related to or hindered Detective Smith in the discharge of her duties. Her duties in the 2009 case against him were completed and no charges were ever prosecuted. Yambrisak's words were too unequivocal, unconditional, not immediate and not specific enough to convey to Detective Smith that Yambrisak was attempting to influence, intimidate, or hinder Deputy Smith in the discharge of her duties.

We find there was insufficient evidence in the record to find that Yambrisak knowingly by unlawful threat of harm was attempting to influence, intimidate, or hinder Detective Smith in the discharge of her duties.

Yambrisak, supra.

{¶5} On May 15, 2015, Appellant filed a complaint for declaration of wrongful imprisonment, pursuant to R.C. 2743.48(A). On July 6, 2015, the State filed a motion to dismiss the complaint due to the trial court's lack of personal jurisdiction, and on July 27, 2015, the State filed an answer to the complaint.² The parties filed separate motions for summary judgment. On June 6, 2016, the trial court denied both motions for summary judgment, finding a material issue of fact remained as to whether Appellant was "engaging in any other criminal conduct during the incident giving rise to the original indictment."

{¶6} The matter proceeded to civil hearing/bench trial on September 23, 2016. The trial court considered the transcripts of the original trial and the evidentiary hearing of September 23, 2016.

{¶7} Via Decision of January 5, 2017 and Judgment Entry of February 21, 2017, the trial court denied Appellant's request for declaration of wrongful imprisonment finding Appellant failed to prove he was not involved in any other criminal conduct on July 15, 2011.

{¶8} Appellant appeals assigning as error:

I. THE TRIAL COURT ERRED IN FINDING FOR THE STATE AND AGAINST PLAINTIFF FOR HIS CLAIM SEEKING A DECLARATION OF WRONGFUL IMPRISONMENT PURSUANT TO R.C. 2743.48 BECAUSE AS A MATTER OF LAW PLAINTIFF MET HIS BURDEN OF PROOF BY A PREPONDERANCE OF THE EVIDENCE IN ESTABLISHING R.C. 2743.48(A)(4).

{¶9} The burden is on a claimant to prove by a preponderance of the evidence he or she meets the definition of a "wrongfully imprisoned individual." Doss v. State, 135 Ohio St.3d 211, 2012-Ohio-5678, 985 N.E.2d 1229, at paragraph one of the syllabus. To meet that definition, the claimant must satisfy each of the requirements set forth in the statute,

(A) As used in this section and section 2743.49 of the Revised Code, a "wrongfully imprisoned individual" means an individual who satisfies each of the following:

(1) The individual was charged with a violation of a section of the Revised Code by an indictment or information, and the violation charged was an aggravated felony or felony.

(2) The individual was found guilty of, but did not plead guilty to, the particular charge or a lesser-included offense by the court or jury involved, and the offense of which the individual was found guilty was an aggravated felony or felony.

(3) The individual was sentenced to an indefinite or definite term of imprisonment in a state correctional institution for the offense of which the individual was found guilty.

(4) The individual's conviction was vacated, dismissed, or reversed on appeal, the prosecuting attorney in the case cannot or will not seek any further appeal of right or upon leave of court, and no criminal proceeding is pending, can be brought, or will be brought by any prosecuting attorney, city director of law, village solicitor, or other chief legal officer of a municipal corporation against the individual for any act associated with that conviction.

(5) Subsequent to sentencing and during or subsequent to imprisonment, an error in procedure resulted in the individual's release, or it was determined by the court of common pleas in the county where the underlying criminal action was initiated that the charged offense, including all lesser-included offenses, either was not committed by the individual or was not committed by any person.

{¶10} In Bundy v. State, 143 Ohio...