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Yambrisak v. State

Court of Appeals of Ohio, Fifth District, Richland

August 21, 2017

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

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

          For Plaintiff-Appellant JACQUELINE GREENE, TERRY GILBERT.

          For Defendant-Appellee MICHAEL DEWINE Ohio Attorney General, DEBRA GORRELL WEHRLE Assistant Attorney General.

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

          OPINION

          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 CASE[1]

         {¶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 Sherriffs 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 revolver holstered 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 ...

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