Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office
Also see Bribery.
R.C. 2905.12 -- Coercion
R.C. 2921.03 -- Intimidation.
R.C. 2921.04 -- Intimidation attorney, victim
or witness in criminal case.
R.C. 2921.05 -- Retaliation
R.C. 2921.44(C)(3) -- Dereliction of duty for
law enforcement officer to negligently prevent intimidation of a
R.C. 2927.12 -- Ethnic intimidation.
Columbus City Code Sec.
State v. Malone,
121 Ohio St. 3d 244,
2009-Ohio-310 – A charge of witness intimidation pursuant to
must be premised upon threats made after a police investigation or legal
proceeding has commenced.
State v. Simons, 193
Ohio App. 3d 784,
2011-Ohio-2071 – Threatening message was left on a cell
phone following the time criminal activity was reported to the
police, but before charges were filed or indicted or court
proceedings initiated. Intimidation of a witness count was not
sustainable. Also see State v. Davis, 193 Ohio App. 3d
2011-Ohio-1280; State v. Gooden, Cuyahoga App. No.
Fairbanks, 172 Ohio App. 3d 766,
2007-Ohio-4117 -- Defendant threatened harm to codefendants
if they cooperated with the police. For purposes of
2921.04 the codefendants were witnesses.
Virginia v. Black (2003), 123 S.Ct. 1536
-- Statute banning burning a cross with the intent to intimidate does not
violate the First Amendment. The First Amendment does not prohibit all forms of
content-based discrimination within a proscribable area of speech. Court cites
the history of cross burning as a particularly virulent form of intimidation.
Case remanded for further consideration of the constitutionality of an
instruction to the effect that burning a cross is prima facie evidence of an
intent to intimidate.
State v. Williams (1999), 104 Ohio Misc.
2d 27 -- Prosecutor threatened to have defendant indicted if he didn't plead
guilty to misdemeanor. Defense counsel passed on client's refusal. Prosecutor
obtained an indictment. Defense counsel filed a complaint charging prosecutor
with coercion in violation of
R.C. 2905.12(A)(4). Complaint dismissed.
Prosecutor had immunity pursuant to Division (B) of the coercion statute.
Apprendi v. New Jersey (2000), 120 S.Ct.
2348 -- Under New Jersey law, an increased penalty could be imposed if an
offense was racially motivated, this being a matter to be determined by the
court and not the jury, and subject to the preponderance standard. Held that
except for prior convictions, any fact which increases the penalty for a crime
beyond the statutory maximum must be charged and proved beyond a reasonable
doubt at trial.
State v. Farthing, 146 Ohio App. 3d 720,
2001-Ohio-7077 -- Defendant was convicted of retaliation based on sexually
suggestive statements about his parole officer. (1) Defendant was apparently on
parole in Greene County, but the APA did not maintain a local office, and the
P.O. worked out of another county. Statements leading to charges were made at a
prison in Pickaway County. Greene County was not the proper venue for trial of a
retaliation charge. (2) Retaliation does not require proof that the threat of
harm was communicated to the person threatened, but the state must show an
awareness the threats would be communicated or a reasonable expectation this
would be done.
Bowshier, 167 Ohio App. 3d 87,
2006-Ohio-2822 -- Intimidation conviction was supported by
sufficient evidence but was against the manifest weight of the
evidence. Defendant's verbal abuse and threats following arrest
could be inferred to be a knowing attempt to hinder, influence
or intimidate the officer, but could also be inferred to be the
product of frustration and rage at being arrested. In assessing
weight there is a distinction between weighing credibility,
better left to the trier of fact, and weighing competing
inferences, and how persuasive each is.
State v. Jackson, Franklin App. No.
2003-Ohio-6183, ¶ 51-54 -- Defendant called witness's phone number
from jail and told the friend who answered that he would kill the witness when
he got out of jail. Intimidation conviction was not supported by the evidence
and no nexus was established between this threat and the witness testifying.
State v. Simms, 165 Ohio App. 3d 83,
2005-Ohio-5681 -- Intimidation conviction supported where defendant, knowing
officers were there to arrest him, told them he was armed in order to succeed in
his wish to have a 72-hour standoff.
State v. Cress, 162 Ohio App. 3d 46,
-- (1) Intimidation conviction was not supported by the evidence as none of the
things the defendant threatened his girlfriend with amounted to illegal
activity. These included dissemination of nude photos of the victim, passing on
information to children services and the landlord, stopping the victim's use of
the defendant's car, and not helping when she was late with her rent. Dissenting
judge believes the focus is on unlawfully threatening harm, not the illegality
of the acts threatened. But see State v. Cress, 112
Ohio St. 3d 72,
2006-Ohio-6501, ¶43-44, affirming this outcome but holding "unlawful" is not
limited to criminal conduct. But the state is faulted for not having introduced
"evidence demonstrating the elements of any predicate offense," such as coercion
or extortion. (2) Allowing the testimony of a supposed expert on domestic
violence, who did not know the parties, was prejudicial error. There was no
charge of domestic violence, and it was irrelevant why the victim preferred
charges not be pursued.
State v. Solomon, Marion App. No.
2004-Ohio-2795 -- Intimidation and retaliation are not allied offenses
of similar import.
State v. Morris, Monroe App. No. 02 MO
2004-Ohio-6810 -- To sustain a retaliation conviction, it is not necessary
to prove the victim was a witness in a public proceeding or before a grand jury.
Oral and written statements to law enforcement identifying the defendant as the
stooge's fence were sufficient.
State v. Wyant (1994), 68 Ohio St. 3d 162
-- Syllabus: "R.C. 2927.12, the Ohio Ethnic Intimidation Act, is constitutional
under the United States and Ohio Constitutions. (Wisconsin v. Mitchell
, 508 U.S. 476, 112 S.Ct. 2194, 124 L.Ed. 2d 436, followed; State v.
Wyant , 64 Ohio St. 3d 566, 597 N.E. 2d 450, vacated.)" Also see
State ex rel Heck v. Kessler
(1995), 72 Ohio St. 3d 98.
State v. Crider (1984), 21 Ohio App. 3d
268 -- For purposes of the intimidation of a crime victim or witness statute,
R.C. 2921.03, a victim becomes a "witness" at the time of the original crime,
regardless of whether a suspect has been identified or charges filed.
State v. Troutman (1991), 71 Ohio App. 3d
755 -- Defendant berated Health Department septic tank inspector, accusing him
of being a Peeping Tom after his daughter had complained of man looking in
window. Intimidation conviction affirmed. See dissent for proper view of the
State v. Price (1990), 69 Ohio App. 3d 243
-- (1) Intimidation conviction affirmed where defendant mouthed off at parole
officer who was present while he was booked after being arrested. (2) Though
there was apparently a specification alleging a prior offense of violence, and
sufficient proof presented on the specification, the court failed to make a
finding. Consequently court may not impose an indefinite sentence until its
finding is journalized. Remanded for this to be done.
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