State v. Smith

1

2023-Ohio-683

STATE OF OHIO, Plaintiff - Appellee v. PATRICK SMITH Defendant-Appellant

No. 2022 CA 00031

Court of Appeals of Ohio, Fifth District, Licking

March 6, 2023

DATE OF JUDGMENT: March 6, 2023

Appeal from the Licking County Court of Common Pleas, Case No. 2021 CR 00652

For Plaintiff-Appellee JENNY R. GONZALEZ-WELLS, Licking County Prosecutor

For Defendant-Appellant BRIAN A. SMITH, Brian A. Smith Law Firm LLC By: KENNETH OSWALT Assistant Prosecuting Attorney

William B. Hoffman, P.J., John W. Wise, J., Craig R. Baldwin J., Judges

OPINION

Baldwin, J.

STATEMENT OF THE FACTS AND THE CASE

{¶1} In late 2020, criminal charges were filed against the appellant in a matter pending before the Licking County Municipal Court. The appellant failed to appear for a court hearing in the municipal court case, and a warrant was issued for his arrest. He was arrested sometime in late October of 2021.

{¶2} Following his arrest, the appellant appeared before the municipal court judge for a bond hearing, at which time the judge set bond. Appellant thereafter began sending the judge numerous, almost daily letters. The appellant's letters to the judge were insulting and demanding. The appellant set forth what he wanted the judge to do in his case, and "ordered" the judge to take certain actions in the case. The appellant's letters to the judge contained personal attacks, were disparaging and offensive, and contained a great deal of profanity.

{¶3} On December 1, 2021, the judge received a letter dated November 24, 2021 from the appellant ("December 1, 2021 letter"). The letter was, again, replete with profanity, and instructed the judge regarding how the appellant's municipal court case was to proceed because appellant had ordered it so. The appellant then told the judge that he was the type who "deserves to have his entire family locked in a cage, doused with gasoline, and then set ablaze until even their bones are turned into ash." The appellant went on to tell the judge that "you, too, deserve to be locked in a cage and immolated, ISIS style, but only after you finish watching all your family and loved ones, colleagues, too, go through it first." The appellant then told the judge that he "deserve(s) to be burned the f-- alive." The appellant added the phrase "figuratively speaking, of course" at the end of the letter in parenthesis. None of the appellant's previous letters to the judge contained overt threats to his personal safety or the safety of his family or colleagues.

{¶4} The December 1, 2021 letter was different in tone from the other letters the judge had received from the appellant, so much so that it caused the judge to fear for his personal safety, the safety of his family, and the safety of his staff. As a result, he filed a report with the Licking County Sheriff.

{¶5} The matter was investigated by the Licking County Sheriffs department, and the appellant was thereafter charged with intimidation in violation of R.C. 2921.03(A), a felony of the third degree; aggravated menacing in violation of R.C. 2903.21(A), a misdemeanor of the first degree; and, retaliation in violation of R.C. 2921.05(A), a felony of the third degree. The appellant appeared for a bond hearing on December 6, 2021, at which time bond was set. The appellant pleaded not guilty to all charges at his December 21, 2021 arraignment.

{¶6} During the pendency of the within matter the appellant also sent numerous letters to the trial court judge. In one such letter, dated December 6, 2021 and file stamped December 16, 2021, the appellant stated: "I wrote what I wrote *precisely because* I *wanted* to cause an outrage!!" The appellant stated that he "…*wanted* him to be so mad at me that he refused to even look at me or preside over my cases in court!!" The appellant stated further that he wrote the letter to the judge because: "… I may as well piss him off so insanely much that we walks off/resigns from the cases himself!!"^[1] {¶7} The matter proceeded to trial, at which time the municipal court judge testified that until the appellant's December 1, 2021 letter, he had never been directly threatened with harm to himself or his family in all his time on the bench. The appellant's letter caused the judge to fear for his safety and that of his family, and after reporting the incident to the Licking County Sheriff's department he consulted with members of law enforcement for advice regarding what he could do to make him and his family safer. In addition, he brought his family together and told them to be very careful about paying attention to their surroundings, and to keep doors locked at all times. Finally, he got a tutorial on the use of a gun in case he needed to defend himself or his family.

{¶8} The judge further testified that "in comparison with [appellant's] previous correspondence and the specificity of what he said I deserve to have happen to me and the fact that I wasn't getting any letters or correspondence from anybody else that was that mad at me, yes, I took it as a threat from him." The judge testified that the fact that the appellant was in jail did not assuage his concerns, as the appellant may have found a way to post bond and be released legally, or might have had friends or compatriots on the outside that could carry out the appellant's threats. Further, the underlying charges provided for less than one year of jail time, after which the appellant would be released.

{¶9} The judge testified that due to the criminal charges arising from his report to authorities, he did not continue to preside over the appellant's municipal court case. He consulted with his fellow municipal court judge, who felt uncomfortable presiding over it. The judge therefore put on an entry recusing both himself and his fellow municipal court judge from the appellant's municipal court case, and asked the Ohio Supreme Court to assign a visiting judge.

{¶10} Additional witnesses testified for the prosecution in support of the threatening nature of the letter, including a representative from the clerk of court's office and the Licking County Sheriffs Department deputy who investigated the judge's complaint. After the State rested, counsel for the appellant moved for acquittal pursuant to Crim. R. 29 arguing that, even viewing the evidence in a light most favorable to the State, the essential elements of the offenses with which the appellant was charged had not been met. The appellant's counsel argued further that there was no actual threat to the judge. Finally, appellant's counsel argued that the appellant was merely "spouting off" and "choosing his wording carefully so that there [was] no direct threat." The trial court denied the motion.

{¶11} The appellant's counsel argued that the language contained in the appellant's December 1, 2021 letter was not a threat, but rather, just the ranting of a frustrated individual. Counsel argued that the appellant did not state that he was going to actually put the judge and his family members in a cage and set them ablaze, merely that he felt the judge deserved it. In addition, counsel argued that the appellant's "figuratively speaking, of course" disclaimer at the bottom of the letter vitiated any ill will, rendering the letter merely bluster. Finally, counsel argued that the language contained in the letter was protected free speech.

{¶12} Counsel renewed the Crim. R. 29 motion for acquittal following closing arguments, which was again denied.

{¶13} The jury returned a guilty verdict on all counts. The trial court merged the charges for purposes of sentencing, and the State elected upon Count 1, the intimidation charge, for purposes of merger. The appellant was sentenced to eighteen (18) months in prison with credit for time served. The appellant has appealed, setting forth the following three assignments of error:

{¶14} "I. APPELLANT'S CONVICTIONS WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE."

{¶15} "II. APPELLANT'S CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."

{¶16} "III. THE FAILURE OF APPELLANT'S TRIAL COUNSEL TO CHALLENGE R.C. 2921.03, R.C. 2901.21, AND R.C. 2921.05(A) AS UNCONSTITUTIONAL AS APPLIED TO APPELLANT, IN VIOLATION OF APPELLANT'S RIGHT TO FREE SPEECH UNDER THE FIRST AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTION 11 OF THE OHIO CONSTITUTION, CONSTITUED INEFFECTIVE ASSISTANCE OF COUNSEL, IN VIOLATION OF APPELLANT'S RIGHT OT COUNSEL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION."

{¶17} The appellant argues that his convictions were not supported by sufficient evidence, and that they were against the manifest weight of the evidence. In addition, he argues that his trial counsel was ineffective because he did not challenge the constitutionality of R.C. 2921.03, R.C. 2901.21, and R.C. 2921.05(A) as applied to appellant because the comments contained in his letter to the judge were protected speech. We disagree.

ASSIGNMENTS OF ERROR NUMBERS ONE & TWO

Standard of Review

{¶18} Sufficiency of the evidence was addressed by the Ohio Supreme Court in State v. Worley, 164 Ohio St.3d. 589 2021-Ohio-2207, 174 N.E.3d 754:

The test for sufficiency of the evidence 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." State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, superseded by constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102, 684 N.E.2d 668 (1997), fn. 4, and following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d

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