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Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

MENACING (124)

In general

Ethnic intimidation

Stalking

Protest situations

 

R.C. 2903.21 -- Aggravated menacing.

R.C. 2903.211 -- Menacing by stalking.

R.C. 2903.212 -- Consideration in setting amount and conditions of bail for violation of certain protection

orders.

R.C. 2903.213 -- Motion for issuance of anti-stalking protection order.

R.C. 2903.22 -- Menacing.

Columbus City Code Sec. 2303.03 -- Aggravated menacing.

Columbus City Code Sec. 2303.04 -- Menacing.

In general

State v. Harding, 185 Ohio App. 3d 318, 2009-Ohio-6882 – Prosecutor was unable to get supposed victim in a menacing case to say he actually believed the defendant’s threats. PW’s position was he had a business to run and was tired of being harassed. by the defendant who had entered into a relationship with his ex-wife. Conviction was not supported by the evidence. ¶28: “Appellant’s ‘capability’ to cause harm is insufficient standing alone to support the charge; rather, the state must demonstrate that the victim actually believed that appellant would cause harm to him, his property, or his family.”

State v. Ludt, 180 Ohio App. 3d 672, 2009-Ohio-416 – Defendant greeted repo men at the door with a gun in his hand. Case was taken under advisement after a bench trial. Defendant posted signs in his yard which the judge saw. At a status conference the judge said he interpreted these as a dare he find the defendant guilty, then announced that was his verdict. But the verdict was not journalized until two months later, at which time the judge also recused himself. While the court of appeals may not pass on matters of disqualification, it may consider whether there was a denial of due process. After discussing the records and detailing possible defenses to a charge of aggravated menacing, the court finds a denial of due process.

State v. Britton, 181 Ohio App. 3d 415, 2009-Ohio-1282 – Victim testifies that the defendant‘s statements made her a "little nervous." Evidence supported menacing conviction premised on fear of physical harm, but not conviction for aggravated menacing, which requires the victim fear a threat of serious physical harm. Court should not have admitted testimony that the victim‘s car had been vandalized by an unknown person as evidence of her state of mind.

State v. Buehner, 110 Ohio St. 3d 403, 2006-Ohio-4707-- Syllabus: "An indictment that tracks the language of the charged offense and identifies a predicate offense by reference to the statute number need not also include each element of the predicate offense in the indictment." Ethnic intimidation complaint did not spell out the elements of the predicate offense of aggravated menacing. Reverses State v. Buehner, 161 Ohio App. 3d 546, 2005-Ohio-2828.

State v. Ali, 154 Ohio App. 3d 493, 2003-Ohio-5150 -- On the evening of September 11, 2001 officers illegally arrested the defendant who was robed and veiled. She announced she was a warrior of Allah and threatened to kill the officers. Held that the fruit of the poisonous tree doctrine does not reach statements that constitute an offense in themselves, here aggravated menacing.

State v. Millikin, Hamilton App. Nos. C-030825, 030826, 2004-Ohio-4507 -- Defendant's appearance at the door with a hand gun tucked in his waistband and carrying a shotgun was sufficient to sustain an aggravated menacing conviction. Police were trying to find someone sober enough to moved parked cars. "Alcohol and gunpowder should not be mixed."

Fairfield v. McRoberts (1995), 100 Ohio App. 3d 476 -- Threats were made during a phone call between counties. Venue lay in either county, since the element of the victim's belief of impending physical harm occurred in the county where she heard the threats. See dissent.

State v. Neese (1996), 114 Ohio App. 3d 93 -- Threatening message was left on answering machine. Complaint recited statutory language for menacing by stalking, though citing the correct statute number for aggravated menacing. Aggravated menacing conviction reversed, but court affirmed companion telephone harassment conviction. Though that charge was premised on the call including a violation of the aggravated menacing statute, actual conviction for that offense was not required.

State v. Brooks (1989), 44 Ohio St. 3d 185, 192 -- Suggested that pointing a gun at someone is sufficient to convict on aggravated menacing, though by itself such an act is not sufficient to sustain a conviction for felonious assault.

State v. Fields (1992), 84 Ohio App. 3d 423 -- Aggravated menacing conviction was against the manifest weight of the evidence where woman police officer waived her gun around while ordering fisherman off unoccupied property which did not belong to her, but where she boarded her horse.

State v. Asher (1996), 112 Ohio App. 3d 646 -- Before leaving house, husband suggested wife do so as well, as he might be tempted to hit her if she was there when he returned. Domestic violence conviction premised on aggravated menacing reversed.

State v. Striley (1985), 21 Ohio App. 3d 300 -- (1) Headnote 1: "Where a witness testifies that he did not interpret defendant's remarks as a threat to inflict harm, there is no evidence of a 'threat of serious physical harm' as required for a conviction of aggravated menacing, and it is error for the trial court to deny defendant's Crim. R. 29 motion for acquittal." (2) Menacing is a lesser included offense of aggravated menacing.

State v. Denis (1996), 112 Ohio App. 3d 397 -- Menacing conviction was not supported by the evidence where the supposed victim laughed off the defendant's threat to "kick his ass" if he appeared at the police station, contrary to court order, with his wife when her kids were to be exchanged for visitation with her ex-husband. There was no indication that he felt threatened by the defendant's comments.

State v. Richard (1998), 129 Ohio App. 3d 556 -- After his income tax refund check was intercepted by a child support enforcement agency, defendant told a caseworker perhaps he should kill his ex wife and end it all. Worker passed this on to a supervisor who contacted the police and ex wife. Aggravated menacing conviction reversed: (1) Alleged victim was not the person to whom the remark was addressed, or a close relative of that person. (2) Statement was reckless, but not knowing, as defendant could not have reasonably expected it to be passed on.

Cleveland v. Petko (1996), 112 Ohio App. 3d 670 -- In a fence dispute between neighbors, jumping on the fence while making threats and jabbing motions with a screwdriver was sufficient to establish aggravated menacing.

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Ethnic intimidation

Wisconsin v. Mitchell (1993) 508 U.S. 476 -- Statute allowing an increased penalty when the defendant intentionally selects the victim based on race, religion, color, national origin or ancestry held not to violate the First Amendment. Also see State v. Wyant (1994), 68 Ohio St. 3d 162.

State v. McCarthy (1999), 99 Ohio Misc. 2d 11 -- Defendant found guilty of complicity in ethnic intimidation where she was the drive of the car occupied by friends who spay painted ethnically offensive graffiti at a house.

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Stalking

State v. Szloh, 189 Ohio App. 3d 13, 2010-Ohio-3777 – Defendant challenged the sufficiency of proof in support of his menacing by stalking conviction, specifically that he caused his ex-wife and her mother to experience either fear of physical harm or emotional distress. The wife testified she fled and locked herself in the house when she saw him. They quit walking the dog and spent nights with friends. Treatment was sought. Affirmed.

State v. Payne, 178 Ohio App. 3d 617, 2008-Ohio-5447 – Defendant was convicted of F-4 menacing by stalking based on driving past the home of an ex-girlfriend on two or more occasions. (1) The evidence supported a finding of "temporary substantial incapacity" due to mental distress based on her testimony she was afraid to leave the house for six hours. (2) Pattern of conduct element was supported by the fact he drove by on more than one occasion. (3) Menacing by stalking is elevated to an F-4 if the offender has a prior conviction or a history of violent acts towards the victim or another. Testimony of another ex-girlfriend in this regard was properly received.

State v. Smith, Seneca App. No. 13-02-11, 2002-Ohio-5095 -- Sheriff and associate were indicted for stalking a dispatcher who had openly campaigned for an opponent. Associate engaged in an extended course of nonverbal harassment, and his conviction as a principal was affirmed. Sheriff was acquitted, but the associate was found guilty of complicity in his acts. Verdict is inconsistent and conviction of associate for complicity in the Sheriff's acts would be against the manifest weight of the evidence. Since no sentence was imposed, remanded for entry of judgment.

State v. Scruggs (2000), 136 Ohio App. 3d 631 -- Menacing by stalking complaint alleged the offense occurred on or about a single date. Thus, the state was required to establish a pattern of conduct arising from two or more events occurring on that date. The state could not rely upon conduct following the filing of the complaint. Nor could it rely on earlier conduct without alleging the relevant time span in the complaint.

Dayton v. Davis (1999), 136 Ohio App. 3d 26 -- Law student's aggravated menacing and menacing by stalking convictions based on e-mail and web page activities were supported by the evidence.

State v. Cline, Champaign App. No. 2002-CA-05, 2003-Ohio-4712, ¶ 39 -- Menacing by stalking conviction was not supported by the evidence where the defendant manipulated others into trespassing on the land or premises where the victim lived, worked or attended school, but did not trespass himself.

Middleton v. Jones, 167 Ohio App. 3d 679, 2006-Ohio-3465 -- Though contacts may have extended over a period of years, two in one month is enough for the closely related in time element of the offense. Mental distress established by mother feeling nervous, frightened and scared.

Jones v. Miley, Marion App. No. 9-03-04, 2003-Ohio-2939 -- Applying the criminal law standard for review, stalking protection order was supported by the evidence.

State v. Tichon (1995), 102 Ohio App. 3d 758 -- (1) In a menacing by stalking prosecution, lay testimony may be relied upon to establish that a victim suffered mental distress. (2) Other acts testimony concerning photographs taken on numerous occasions, police calls, and harassment lawsuit was properly admitted.

State v. Morris (1982), 8 Ohio App. 3d 12, 15-16 -- Aggravated menacing is not a lesser included offense of felonious assault. Also see State v. Gray (1984), 20 Ohio App. 3d 318; State v. Beaty (1975), 45 Ohio App. 2d 127; State v. Nicholl (1978), 9 Ohio Ops. 3d 285 (nor a lesser included offense to aggravated assault).

Middleton v. Roberds (1996), 112 Ohio App. 3d 678 -- Menacing is a lesser included offense to menacing by stalking.

State v. Kidder (1987), 32 Ohio St. 3d 279 -- Aggravated menacing is not a lesser included offense of attempted murder.

State v. Dario (1995), 106 Ohio App. 3d 232 -- Court rejects claims menacing by stalking statute is void for vagueness, overly broad on its face, or unconstitutional as applied to the facts of the case. History of domestic violence and instances of unwanted contact and threats supported conviction. Also see State v. Schwab (1997), 119 Ohio App. 3d 463.

State v. Benner (1994), 96 Ohio App. 3d 327 -- Court avoids passing on claim menacing by stalking statute is unconstitutionally vague on its face by finding failure to show infringement upon First Amendment rights, or that it is vague in all possible applications. Also see State v. Bilder (1994), 99 Ohio App. 3d 653 which addresses the constitutional challenge, use of similar acts evidence, instructions and the sufficiency of proof.

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Protest situations

Dayton v. Dunnigan (1995), 103 Ohio App. 3d 67 -- (1) Aggravated menacing convictions were supported by the evidence where the defendant, while picketing, asked workers at an abortion clinic if they wore bullet proof uniforms, and made express reference to a fatal shooting at another clinic. (2) There was no First Amendment violation. Analogy to "fighting words" disorderly conduct cases is ill-conceived, as the sort of threats giving rise to menacing charges are not among the class of utterance protected by the First Amendment. Also see State v. Smith (1998), 126 Ohio App. 3d 193.

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